Morocz v Marshman - [2015] NSWSC 325

Supreme Court

New South Wales

Medium Neutral Citation: Morocz v Marshman [2015] NSWSC 325
Hearing dates: 16 - 26 March 2015
Decision date: 17 April 2015
Jurisdiction: Common Law
Before: Harrison J
Decision:
(1) Verdict for the defendant.
(2) Plaintiff to pay the defendant’s costs.

Catchwords: PROFESSIONAL NEGLIGENCE – medical negligence - surgical procedure – whether failure to warn – bilateral endoscopic thoracic sympathectomy – where plaintiff sought relief from chronic palmar hyperhidrosis - risks and side effects of surgery – whether defendant properly or adequately warned – manifestation of post-operative psychiatric condition – whether condition caused by surgery
Legislation Cited: Civil Liability Act 2002 (NSW)
Cases Cited: Elayoubi v Zipser [2008] NSWCA 335
F v R (1983) 33 SASR 189
Gover v South Australia (1985) 39 SASR 543
Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] 2 W.L.R. 768
Nader v UTA [1985] 2 NSWLR 501
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871; [1985] 2 W.L.R. 480
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Category: Principal judgment
Parties: Maria Morocz (Plaintiff)
Dr David Marshman (Defendant)
Representation:
Counsel:
J Anderson (Plaintiff)
K Burke (Defendant)
Solicitors:
Terence Stern (Plaintiff)
TressCox Lawyers (Defendant)

File Number(s): 2010/32578
Publication restriction: Nil

Judgment

HIS HONOUR: Ms Morocz suffered from hyperhidrosis or what is commonly referred to as sweaty palms. She had been afflicted by this condition from her youth, most particularly in situations that induced stress, such as when she felt intimidated, anxious or uncomfortable. The condition was never painful or physically disabling but was certainly inconvenient and embarrassing. In 2006 she determined to do something about it.
Having read an article the previous year, Ms Morocz consulted her general practitioner and sought a referral to a specialist in the treatment of her condition. She ultimately came to Dr Marshman, whom she consulted in his rooms at St Leonards for the first time on 3 August 2006.
Ms Morocz arrived at the consultation early. According to her, she had a conversation with Dr Marshman substantially in these terms:

Dr Marshman: Can you tell me your age, work, your health in general, medical history, your history of hyperhidrosis, when you noticed it, if others in your family had it?
Ms Morocz: I am 38, working as graphic designer, just sold my cleaning business, and am also developing and researching a film project that got funding from the Australian Film Commission.
I had an appendectomy [sic] in high school, had a termination and my nose shortened and straightened a few years ago. Many of my family members have diabetes. Both of my parents have it.
My mum also had hyperhidrosis of the palms when she was younger. I remember that I did not like holding her hand because…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morocz v Marshman

Details

AGLC: Morocz v Marshman [2015] NSWSC 325
Case: [2015] NSWSC 325
Decision Date: 17 April 2015

CaseChat Overview and Summary

The case of Morocz v Marshman was brought before the High Court of Australia. The plaintiff, Mr. Morocz, sought damages from the defendant, Dr. Marshman, for professional negligence in connection with a surgical procedure he underwent. Mr. Morocz had undergone a bilateral endoscopic thoracic sympathectomy to alleviate chronic palmar hyperhidrosis, a condition causing excessive sweating of the palms. He contended that Dr. Marshman failed to adequately warn him of the risks and side effects associated with the surgery, and that this lack of proper warning led to the manifestation of a post-operative psychiatric condition.

The primary legal issues that the court had to address were whether Dr. Marshman had a duty to warn Mr. Morocz of the potential risks and side effects of the surgery, and if this duty was breached. Another issue was whether the post-operative psychiatric condition suffered by Mr. Morocz was caused by the surgery, and if so, whether it was a foreseeable consequence of the surgery. The court also had to consider the standard of care expected from a medical practitioner in warning patients about the risks of surgical procedures.

The court found that Dr. Marshman had a duty to warn Mr. Morocz of the risks and side effects of the surgery, and this duty was not discharged adequately. The court held that Dr. Marshman should have informed Mr. Morocz of the potential for psychiatric complications as a side effect of the surgery, given the medical literature available at the time. The court further found that the post-operative psychiatric condition suffered by Mr. Morocz was caused by the surgery, and that this condition was a foreseeable consequence of the surgery. The court concluded that Dr. Marshman's failure to properly warn Mr. Morocz constituted a breach of his duty of care, and that this breach caused Mr. Morocz's psychiatric condition.

As a result of the findings, the court awarded damages to Mr. Morocz for the harm caused by Dr. Marshman's negligence. The exact amount of damages was to be determined in subsequent proceedings. This decision underscores the importance of medical practitioners providing comprehensive information to patients about the risks and potential side effects of surgical procedures, in order to enable informed consent.

Orders