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Morocz v  Marshman  [2015] NSWSC 325 (17 April 2015)

Last Updated: 17 April 2015



Supreme Court
New South Wales

Case Name:
Morocz v  Marshman 
Medium Neutral Citation:
Hearing Date(s):
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:
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] UKHL 1; [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

  1. 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.
  2. 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.
  3. 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 of that.

I noticed the hyperhidrosis in my early teens. It happened on a handful of occasions before but it became evident in year eight when we had dancing lessons for the formal. Since then I had it in high stress situations, or when in some discomfort or ...anxiety ...or personality clash brought on more than usual stress.

Dr  Marshman : Can you tell me or describe to me how severe is your hyperhidrosis. Is it dripping, or...

Ms Morocz:...not dripping.

Dr  Marshman : Can you describe it then? Can you pick from the three options... like severe, moderate and mild. Which would best describe your hyperhidrosis?

Ms Morocz: It depends how stressed I am. When I’m on my own or doing stuff I do not have it. I only have it when I’m in the company of people who trigger stress. Then it would probably fall into the ‘moderate’ or medium category.

Dr  Marshman : When I greeted you outside, actually that is what I wanted to check, to establish...

Ms Morocz: I know. That is why I did not want to shake your hand. I knew why you were doing it, I mean, you did not shake anybody else’s hand. It just felt like a covert, a set up, it made me feel uncomfortable. Please, go ahead, feel free to check my hand, I have no problem with it at all.

Dr  Marshman : No, it is not necessary, I already made note of your evaluation so that’s fine. Did you use any treatments prior to coming to me? Was it evaluated before you came to see me?”

Ms Morocz: In high school I asked my school doc about it and he prescribed an alcohol rub. Other than that, no.

Dr  Marshman : And? Did it work?

Ms Morocz: I only used it once or twice. It irritated my skin and dried it out too much. Also, it had a really bad smell, so I did not use it again.

Dr  Marshman : Well, these kinds of topical treatments are rarely effective. Did you try Botox?

Ms Morocz: I was surprised to see that Botox was used to treat this as well. I just found out about it as I was reading about the surgery and some surgeons listed it as an alternative.

Dr  Marshman : They can be effective for some people, but the problem with that is that it has to be repeated every couple of months and it can be very painful, and get quite expensive. Have you tried medication?

Ms Morocz: No, I didn’t.

Dr  Marshman : Some people do not tolerate the side-effects. Your body can also get used to it and then it becomes less effective... None of the alternatives have the same level of effectiveness as the surgical procedure, which will cure the condition, and if done well, with minimal side-effects. However if you are not happy with the results, you should know that it cannot be reversed.... So why did you decide to have treatment for it now?

Ms Morocz: I saw an article about it a while ago, and I thought that I will look it up when I have the time. I am working on the film project, now have more time, meeting new people, so thought that this would be a good time to do it.

Dr  Marshman : Where did you look into it?

Ms Morocz: I spent quite some time reading about the surgery on the internet. There are many surgeons who offer it.

Dr  Marshman : I will tell you the basics about the autonomic nervous system, about the procedure and then you can ask questions you have.

The autonomic nervous system has 2 branches, the sympathetic and parasympathetic. These opposing branches regulate all the subconscious processes that ‘run in the background’ and maintain the body functions like breathing, blood pressure, sweating etc; things that we do not think about but allow our body to run smoothly and respond to changes in the environment. This system is not involved in sensation and is not related to movement, so the surgery would not affect sensation or the ability to move and use the hands.

The understanding is that this system, the sympathetic nervous system, is overactive in people who have hyperhidrosis, so the sweat glands are over-stimulated by this overactive SNS, and the rationale behind the surgical treatment is that if these nerves to the sweat glands are disrupted or cut it disrupts the signalling and stimulation to the sweat glands and the sweating stops. It is very effective, and the only permanent option to treat this condition.

The surgery is performed endoscopically, with the help of a tiny camera, so that there is clear vision during the procedure, and it helps to locate the appropriate location where the nerve has to be disrupted for the hand sweating to stop. During the procedure one side of the lung is collapsed so that there is clear access to the nerve. But assisted breathing maintains oxygen levels, so it is safe. After the nerve is disrupted, the lung is re-inflated and the surgery is repeated the same way on the other side. There is a 99-100% chance that the procedure will cure hyperhidrosis of the hands, and if you have axillary or facial sweating it can - but might not - improve it. It can also improve sweating of the feet. It is not designed for that, and theoretically it should not affect the feet, but in about 60% of case there is improvement as well.

The success rate is 99% and not 100%, because there is always a small chance of not completely dividing the chain and it retaining its function. But once the chain has been divided it should cure the sweating.

Just as in any kind of surgery there are risks associated. There are risks that are associated with any form of surgery, and that is death or severe reaction to anaesthesia that I have to warn you about, and then there are the risks associated specifically with sympathectomy.

Because you will no longer sweat on your hands - which is what you want - your body will need to redirect the sweating to other areas so that you can maintain thermoregulation. This is called ‘compensatory sweating’ because the body needs to compensate for the palms. It is a well-recognised side-effect of the procedure, and if you want to have this surgery you have to accept this as a potential complication. It occurs in about 40-50% of patients who undergo sympathectomy. Usually it is mild, but in a tiny percentage, about 1- 2% of people it can be severe. It is usually in people who had more severe sweating all over the body already before the surgery, or who are overweight. They might end up with more severe form of this complication, so you should make sure that you do not put on weight as it might affect it.”

  1. Ms Morocz said that Dr  Marshman  also said words to the effect that there was a 40-50 percent chance that she might have “compensatory hyperhidrosis”. The conversation then continued:

Dr  Marshman : The other possible complication might be that you might sweat more when eating hot or spicy food. We do not know why it happens but in a small percentage of people this can happen that they end up with what is called gustatory sweating after this surgery.

Ms Morocz: I rarely eat hot or spicy food anyway.

Dr  Marshman : The other complication is very rare these days, and it happens if there is damage during the surgery to the nerves that supply the eyelid. If that happens, the eyelid can become droopy. It is called Horner’s syndrome. It is not the end of the world, because it can be easily fixed with 1 or 2 stitches, but because it is a visible complication, it is much dreaded, even though it is extremely rare. Again, the skill of the operating surgeon is an important factor here, and in the hands of a more experienced surgeon this should not occur. Some of the complications - like the compensatory sweating - do not depend on surgical skill, others do. After the surgery you would stay in the hospital overnight.

Ms Morocz: I thought it is a day surgery?

Dr  Marshman : No. With some surgeons, maybe. But because anaesthesia is used and the lungs are collapsed, it is safer if the patients stay in hospital overnight for observation, just to be on the safe side.

Ms Morocz: Do you cut or clamp the sympathetic nerve?

Dr  Marshman : I can see that you have studied the subject well. I cut the nerve. I do not believe that the clamping is reversible, although I am aware that some surgeons offer it with the potential to reverse if the patient is not happy. I do not think it is possible. For that the ‘reversal’ would have to happen within less than 24 hours or even less for the nerve to recover. So no, I do not see a difference and I do not think clamping offers any potential benefit in terms of reversibility.

Ms Morocz: Do you do a T2, T3, T4 or a combination of these? Everybody does a slightly different version, and also for different symptoms. So it is not clear.

Dr  Marshman : I am doing the least invasive method, and I only disrupt the T2. I believe that this delivers the best results with the least chance of the side-effects. T2 is quite high, so it causes the least area of denervation, and because of that the compensatory sweating should be less than with the other methods. I do not think that adding T3 or T4 adds any additional benefit and it would increase the potential for the side effects.

Ms Morocz: Is the effect permanent?

Dr  Marshman : Yes! (with emphasis) Once the sympathetic chain has been cut and the signalling to the sweat glands disrupted, that’s it.

Ms Morocz: I am flying to Europe for a research trip on the 16th of this month. Would I still be able to have the surgery before I leave, and is it safe to fly so soon after surgery?

Dr  Marshman : You should be able to fly within 24 hours, if there are no complications. So, yes, you should be able to fly if we book you in in time, and all goes well. So, I came to the conclusion that you are an appropriate candidate for the surgery.

Ms Morocz: Isn’t it my decision if I want to go ahead with the surgery or not?

Dr  Marshman : No. It is a medical decision and it is up to the medical professional to make that decision whether you are a good candidate for surgery or not.

Please follow me into the reception room. We will need to start processing the paper work pretty quickly if we want to fit you in before your trip. I will need you to sign a consent document that you have been informed about the procedure and the risks, and once we have that it will start the process. I will need to witness your signature and sign it myself.

  1. Dr  Marshman  then handed her a multi-page hospital admission form and said:

"This is for my file, and that other one is for the hospital. Please read it and add your signature and date at the bottom. I will have to witness you singing it. The other one needs to be filled out and signed as well."

  1. Just before he left, Dr  Marshman  also handed Ms Morocz a brochure from the Society of Thoracic Surgeons. At that time he said words to the effect:

"Here you will find the description of the ANS and the procedure in much greater detail. Read it, so that you have a better understanding of what the procedure involves."

  1. Part of that brochure is in the following terms:

“WHAT ARE THE RISKS OF SURGERY?

There are certain risks that are common to all forms of surgery. These include allergic reaction to anaesthetic agents or drugs, or infection at the site of operation. Because the telescope and instruments are passed between the ribs, it is possible to damage the artery, vein or nerve which run beneath each rib. This could potentially lead to bleeding or inflammation of the nerve with chronic irritation or pain. Finally, although the majority of these operations are performed on young adults, occasionally older patients will undergo the procedure. These patients are subject to the risks of cardiac problems (heart attack, abnormal rhythm), stroke, pneumonia, blood clots, and urinary tract infections. The incidence of any of the above potential complications is very low (1% or less) but such problems can arise with any form of surgery, and patients must be aware of all the risks no matter how small.

There are some potential side effects of the surgery. The most common of these is compensatory sweating which occurs in up to 50-60% of patients. One must remember that sweating is one form of regulating the body’s heat. If the operation prevents sweating in the upper chest, back and arms, it is possible that patients will notice a greater amount of sweating elsewhere in their body in order to compensate for the lack of sweating in the upper extremities. This is called ‘compensatory sweating’ and can occur on the face, abdomen, back, buttocks, thighs or feet. While this appears to be merely a nuisance for most patients, occasionally (5-10% of the time) it can be severe and interfere with the patient’s lifestyle.

A second potential side effect is gustatory sweating. Patients who develop this problem note increased sweating when they are eating. This occurs in approximately 5-10% of patients but is rarely severe.

Finally, there is a small but real incidence of Horner’s syndrome (1%). This occurs when the highest sympathetic ganglion (the first ganglion or ‘stellate’ ganglion) is damaged during the operation. When this occurs, the patient notes three findings on the side of the face where the stellate ganglion was injured. These include a slight droop in the eyelid, a small or narrow pupil, and the lack of sweating on that side of the face. This syndrome is sometimes reversible over a period of weeks to months, but may also prove to be permanent. Although the incidence of this is quite low (1%), it is a potential complication of which all patients should be aware. Overall, with the exception of compensatory sweating, the incidence of complications or side effects remains gratifyingly low.

WHAT ARE THE CHANCES OF SUCCESS?

The probability of success varies with the anatomic location of the excessive sweating. ETS will cure approximately 95-98% of excessive hand (palmar) hyperhidrosis and approximately 75-80% of armpit (axillary) hyperhidrosis. Approximately 25% of patients with hyperhidrosis of the feet (plantar) will note some improvement, however, the operation is not designed to treat this disorder and should not be used primarily if this is the only complaint.

SUMMARY

Although ETS is overall a safe and highly effective method of treatment for the hyperhidrosis syndrome, it must be realized that it remains a surgical procedure with the inherent risks described above. As with most disorders, non-invasive medical forms of therapy should be tried prior to surgery. It is only when these prove to be unsuccessful or impractical for long-term use that a surgical procedure should be contemplated. Once the decision to pursue surgery is made, patients would best be served looking for a board certified thoracic surgeon experienced in performing video-assisted thoracic surgery (VATS) otherwise known as thoracoscopy.”

The operation

  1. Dr  Marshman  performed a bilateral endoscopic thoracic sympathectomy on Ms Morocz at Royal North Shore Hospital on the morning of 6 February 2007.

Post-operative observations

  1. Following the surgery Ms Morocz woke up feeling “spaced out”, dizzy and not fully awake. She thought this was due to the drugs and that it would wear off. That feeling did not wear off and the dizziness became a big issue when she got up a few hours after the surgery. She had bad nausea, was vomiting and felt unwell.
  2. Ms Morocz also experienced pain which started slowly to increase. She asked the nurse if this was normal and if others had been in such pain. Each time she asked, the nurses told her that they were only there to take her pulse, temperature and that she should ask someone else. Ms Morocz felt very faint, and when she went to the bathroom and back she had to hold on to the beds and furniture because the room appeared to “flip” and she was scared that she would fall. Ms Morocz stayed in the bed and was willing the time to pass, trying to shut the others out. She also became aware that she was not breathing as usual, that she had to make herself breathe and that her chest was not moving up and down as she did so.
  3. Ms Morocz felt as if part of her had not returned from the general anaesthesia, and that she was yet to regain full consciousness. That sense of not being fully present has remained with her since that time. She thought that this sensation was the effect of the drugs. She tried to focus on the pain. Her upper chest, neck, face and arms felt numb to the touch. When she looked at herself in the mirror she felt as though she was looking at another person. It was a very disturbing realisation.
  4. Ms Morocz thought that something had gone wrong during the surgery.
  5. The day after the surgery Ms Morocz had a quick visit from the Registrar. She asked her if she was ready to go home. She felt very unwell with increasing pain and was terrified that she would be sent home.
  6. The Registrar came back later that day and asked her the same question once more. She felt very uncomfortable at what she thought were attempts to kick her out of the hospital bed when she was so unwell and unsure about what was going on, or why she felt that way. By this time Ms Morocz was vomiting and barely able to talk.
  7. The “pain team” was notified. Ms Morocz thought that they would arrive soon after, but they did not turn up until the next day.
  8. Following the surgery Ms Morocz felt dizzy and was unable even to focus on one point. She was in immense pain when Dr  Marshman  visited her in the ward. She could hardly put a short sentence together for fear that she would throw up but managed to ask him why she was so unwell and in such immense pain. They had the following conversation:

Dr  Marshman : Well, you just had surgery. What do you expect? So, are your hands dry?

Ms Morocz: They are.

Dr  Marshman : Are they warm?

Ms Morocz: They are.

  1. Her hands were very dry and very warm. They felt swollen and throbbing. Dr  Marshman  asked if she was happy about that. Ms Morocz said she was happy that her hands were dry, but very unhappy with how she was feeling and how this outcome could be considered acceptable after an elective procedure.
  2. She kept asking the hospital staff why she was in such pain and whether others after this surgery were the same. She feared that something had happened during the operation and that the hospital staff were not aware of it or were not telling her. Ms Morocz did not know if this pain was now permanent. She was X-rayed. She was found to have atelectasis, where the pleura and the collapsed lung touch and rub against each other.
  3. During the night the pain became unbearable and she thought she would lose her mind. The pain caused her to make non-human, guttural, grunting sounds where she had no control over her body or the sounds it was making. She said that she thought she would have to jump out the window for the pain to cease. She called the nurse, and when she arrived Ms Morocz could not talk so she just grabbed her shoulders and shook her in desperation. She was given pain medication which lessened the pain slightly but made her unwell.
  4. By morning Ms Morocz was resigned to the situation. She felt numb. She did not care anymore. One of the attendants who came to change the bed and change the wound dressing became distressed, pointing out that her blood oxygen level kept going down, her fingers were blue-ish and her face looked the shade between green and blue. She felt and looked dazed. The attendant appeared agitated and kept saying to the female assistant words to the effect of "This is not right. This is not right."
  5. Ms Morocz said that by this time she knew something was terribly wrong, but felt that nobody seemed to care, and became convinced that she was going to die.
  6. By 8 February 2007 Ms Morocz had become more distressed and furious at her situation. The medical staff were unable to help her. She first noticed the so-called "compensatory sweating". There were streams of sweat running down her back and torso, and dripping down onto the bed. Some of the beads formed so fast that they dropped off her body before they made it all the way down. It started out with a prickly sensation under the skin and then it “went into overdrive”. It felt like someone turned on a tap, and her bed became wet in no time. The discomfort of this sensation claimed most of her attention. The streams of sweat running under her clothes and the prickly heat sensation as it starts remain a distressing and anxiety inducing feature for Ms Morocz in stressful or hot situations.
  7. The pain team made recommendations to change her painkillers to something better tolerated. New medication was given, and she was again given additional oxygen to improve her blood oxygenation. Soon after, the Registrar appeared and asked her again if she was ready to leave. Because she did not find the hospital stay beneficial (but rather distressing) or the staff helpful in any meaningful way, Ms Morocz did not want to stay any longer and agreed to leave with the condition of the pain medication becoming effective. She was discharged that day. She remained unwell.
  8. Outside of the hospital air-conditioning, the so-called "compensatory sweating" became much worse. By the time she arrived at her home, her clothes were soaked through. Because she was also in severe pain it was even more difficult to take her clothes off. She contemplated using scissors to do so because she could not really move her shoulders or arms. She had profuse sweating all over her body below the level where she was cut during surgery and was dry above that level. She continued to sweat profusely.
  9. The next day she started feeling even worse. Moving from one room to the next required a significant effort, and was manageable only by leaning against the wall or furniture for support. She felt like her centre of gravity had been shifted, and her head felt heavy and under constant pressure.
  10. Soon after she started getting headaches, the pressure from the top of her head began to weigh down on her brain. The pain flared up beyond her back and chest and armpit area and affected her arms as well, similar to the sensation of hitting her funny bone, but without relief. It was unrelenting. Ms Morocz’ arms felt like lead and she could hardly lift them. Her armpits were swollen to the size of a melon.
  11. Her nose was constantly blocked and dripping. Some smells also triggered a clear discharge that was so quick and unexpected that she could not anticipate it. To this day Ms Morocz has a permanently blocked nose on the right side, and the dripping comes on when she gets stressed or starts sweating.
  12. Ms Morocz continued to feel unwell, faint, dizzy and nauseous, and thought that it might be from the pain medication. But in the evenings it got worse. She had difficulty falling asleep and constant jerks woke her up.
  13. She developed palpitations. She did not have a rapid heartbeat but rather a reluctant, sluggish heart rate where every beat felt like a spasm in slow motion. Sometimes with a full beat, sometimes with half a beat, and then the following beat came and was immensely painful. Ms Morocz realised that her heart was beating very slowly, shifting rhythm, and she felt like she had to will it to work. It did not go over 40 beats per minute. During the day it went somewhat higher, but in the evenings it slowed down. She thought that during the night when asleep it would slow further. Initially, Ms Morocz thought this slow rhythm was from the pain medication so she stopped taking it, but the cardiac symptoms did not improve.
  14. Ms Morocz felt that her hands had doubled in size and were throbbing and the joints felt swollen, stiff and painful. Her hands were also very dry and unnaturally hot and prickly under the skin. Her head felt the same way and with the slightest physical activity this became more pronounced. She felt an intense pressure on the top of her head that made her feel dizzy. This became a constant, continuous headache that developed into migraine attacks.
  15. Any change in temperature seemed to affect her body's ability to adjust and to compensate. Just having a warm shower would bring on difficulty breathing and caused her to struggle for air.

Telephone call with Dr  Marshman 

  1. Ms Morocz ultimately rang and spoke to Dr  Marshman  on 15 February 2007. She told him the following things:

“I feel generally unwell, have no energy, feel dizzy and have constant nausea. I have a constant headache, extreme pain in the arms and shoulder, have difficulty breathing and it gets worse with exertion. My heart wants to stop, and I have all sorts of mental and emotional changes that make me feel like a zombie. And I have extreme sweating.”

  1. Dr  Marshman  replied:

“These kinds of things have been reported in the literature. Unfortunately everybody responds differently to this procedure and it is impossible to predict what the effect will be before the surgery.”

  1. Dr  Marshman  then said words to the effect:

"You should come in so that I can see what is going on. Some of the symptoms you described might be, not all, but certainly some, might be because you might have had a - it can happen - easily, the recurrence of the pneumothorax. And that would explain a couple of things you mentioned. So I would recommend that you come in to see me so that I can follow it up.

There is no need to make an appointment; I will see you before I start out with the other patients, just come in after you have had the x-ray. And about the operating report, we do not have it typed yet, there is a long backlog of work, so it can take a long time to get it typed up. But once it has been done, I can provide you with a copy, I see no problem with that"

Subsequent events

  1. Ms Morocz was X-rayed the following day. On 19 February 2007 she attended Dr Forbes. She recorded Ms Morocz’ complaints of pain and numbness across the chest and arms, the abnormal sensation in the armpits and the breathlessness. She referred her to Dr Morgan.
  2. On 26 February 2007 Ms Morocz attended the Emergency Department at Royal North Shore Hospital. She was experiencing shortness of breath, heart arrhythmia, constant headaches, loss of sensation on the skin of her arms and chest, numbness in her hands, pain in the joints of her arms, “nerve inflammation” in her arms, dizziness, slowed reaction time, loss of reaction to dangerous situations, general numbness and a reduced emotional response.
  3. Ms Morocz discharged herself later the same day.
  4. Ms Morocz returned to see Dr Parmar on 28 February 2007. She was referred to Dr Lord at Hornsby whom she attended on 1 March 2007.
  5. Ms Morocz returned to see Dr Forbes on 11 April 2007. On or about 16 April 2007 she went to see Dr Johnston.

Dr  Marshman ’s version of events

  1. Dr  Marshman  is a specialist cardio-thoracic surgeon. He first saw Ms Morocz on 3 August 2006 upon referral from Dr Forbes. Her letter of referral said this:

“Thankyou seeing Maria, aged 38 years. She has had a long history of excessive sweating of the palms of her hands and recently finds herself in an employment where she has to shake hands a lot. The problem is worse when she is nervous and her mother also suffers from the same condition.

Could you please advise re a possible good result with a cervical sympathectomy.”

  1. Dr  Marshman  independently recalled that Ms Morocz was articulate, self-assured and confident. She consulted him specifically seeking sympathectomy surgery, preferably as soon as possible as she was proposing to travel to France. Ms Morocz reported that her palmar sweating was severe and affected her whole life.
  2. Dr  Marshman ’s recollection is that Ms Morocz would not permit him to touch or examine her hands because sweating was such a big problem for her. She reported excessive sweating on her palms only and denied excessive sweating elsewhere. Her mother had the same condition. In the absence of a physical examination of her hands, Dr  Marshman  said that he was dependent upon the history she gave him and Dr Forbes’ letter. Apart from an examination of a patient’s hand Dr  Marshman  said that there was no objective test that would assess the extent or severity of the symptoms. Rather it is based on the degree to which the symptoms interfere with the patient’s daily life.
  3. Dr  Marshman  formed the impression that Ms Morocz was fairly knowledgeable about the proposed procedure and that she had some pre-existing knowledge about how it was to be performed. For example, Ms Morocz asked Dr  Marshman  whether he used clips, as opposed to diathermy, to divide the nerve. It also appeared to him that Ms Morocz wanted the procedure to be performed and that she was simply attending the consultation in order to engage him to do it.
  4. Dr  Marshman  said that he advised Ms Morocz that the point of the procedure was to block the function of the nerve. He told her that his practice was to divide the nerve as that was most reliable and standard procedure. He told her that it was not reversible.
  5. Having listened to Ms Morocz, Dr  Marshman  said that he formed the opinion that her symptoms were sufficiently intrusive to warrant a recommendation for surgery.

Usual practice - description of the procedure

  1. Dr  Marshman  said that in accordance with his usual procedure he discussed with Ms Morocz in general terms the relevant anatomy and the cause of her palmar sweating. He discussed the general function of the sympathetic nervous system. He also said that in accordance with his usual practice, he “would have” discussed conservative treatment options.
  2. Dr  Marshman  said that he usually advised patients who were considering undergoing a bilateral endoscopic thoracic sympathectomy that the sympathetic nervous system is responsible for controlling parts of the body over which they have no voluntary ability to regulate, such as the production of sweat. He advised that although there is no known cause for overly sweaty palms, the procedure had the effect of reducing unwanted symptoms, as it reduced the sympathetic input to the T1 ganglion that supplies innervation to the hand and arm.
  3. Dr  Marshman  had no independent recollection of precisely what he said to Ms Morocz as to how the procedure would be performed but considered that in accordance with his usual practice he would have advised her of the following matters:
  4. Dr  Marshman  said that he adapted his usual practice depending upon the patient in question.

Usual practice – discussion of the risks of the procedure

  1. Dr  Marshman  said that his usual practice when advising patients of the risks or complications associated with a bilateral endoscopic thoracic sympathectomy is to tell them the following things:
  2. Dr  Marshman  wrote to the referring doctor on 4 August 2006 in the following relevant terms:

“I saw Maria Morocz in my rooms today [sic]. Thank you for your referral. You had originally referred her to Michael Biggs who I understand is not performing thoracoscopic sympathectomy anymore and she has been sent my way.

She is a 38 year old lady who is self-employed and is now working in the film industry and has had a life long history of palmar hyperhidrosis. She well remembers her mother suffering from the same condition and as a little girl was unhappy to hold her mother’s hand because of the excess sweating. In fact she was quite unhappy for me to examine her hands today.

She does not have excess sweating elsewhere.

She is otherwise well.

We have had a long discussion today about the role of the sympathetic nervous system and hyperhidrosis and the operative procedure. She is aware of the risks involved with the surgery, including Horner’s syndrome and compensatory hyperhidrosis and intercostal neuralgia. She is aware that the procedure is irreversible. She understands that there is a 98% assurance that she will have dry hands but the compensatory hyperhidrosis is likely in approximately 60-70% of cases.

I have given her the Society of Thoracic Surgeons’ handout on the procedure today. She is very keen to proceed. She is travelling to France in approximately three weeks. I will place her name on my waiting list at Royal North Shore Hospital. Thank you for your referral.”

  1. Dr  Marshman  confirmed that he performed the operation on 6 February 2007. He dictated his operation report shortly thereafter in the following terms:

“PREOPERATIVE ASSESSMENT:

This 38 year old lady has a long problem with palmar hyperhidrosis and requests thoracoscopic sympathectomy after being fully informed.

PREOPERATIVE DIAGNOSIS:

Bilateral palmar hyperhidrosis.

_________________________________

OPERATION PERFORMED:

Bilateral thoracoscopic sympathectomy.

OPERATIVE PROCEDURE:

A right axillary mini-thoracotomy was made and a 5.0mm scope inserted and the anatomy visualised. A diathermy hook was then placed alongside the scope and the neck of the second rib identified and the sympathetic chain identified here and divided using diathermy, making sure there was no heat damage to the stellate ganglion. There was a small lateral nerve of Kuntz which was also divided. A single 24 drain was placed and the lung re-inflated and the wound closed over the drain.

Similarly on the left side, a single axillary mini-thoracotomy was made and again a 5.0mm scope with a diathermy hook alongside. The chain was again easily identified on the neck of the second rib. There was no lateral nerve at this stage. The nerve was divided, a single drain placed and the wound again closed routinely.”

  1. Dr  Marshman  said that, in accordance with his usual practice, he would have seen Ms Morocz every post-operative day prior to her discharge from hospital. Her post-operative recovery was complicated by a small pneumothorax. Ms Morocz was discharged from hospital on 8 February 2007.

Assessment of Ms Morocz and Dr  Marshman 

Ms Morocz

  1. Ms Morocz impressed me as an articulate and reliable witness. Her presentation in the witness box was measured and considered but not apparently guileful or disingenuous. Ms Morocz is an obviously highly intelligent woman who exhibited an impressive understanding of the process of giving evidence and she did so in a way that was entirely consistent with her case. She was not extravagant in her responses or falsely emotional notwithstanding her description of her life since the surgery in 2007. On the contrary Ms Morocz was to some extent extremely unemotional and calm. She occasionally gave answers to questions that were not only not particularly helpful to her cause but having regard to my assessment of her intelligence and awareness were knowingly so. One example of that was Ms Morocz’ concessions concerning the fact that she read and understood the brochure that Dr  Marshman  gave her outlining the procedure. Even without her admission concerning that document, I would have been prepared to find that it was probable to a degree approaching certainty that Ms Morocz would have digested that important information at the earliest available opportunity. I could discern no exaggeration or embellishment of any sort. It is difficult in such circumstances not to accept everything that she said as truthful.
  2. The significance of that conclusion concerning the dual assessment of her evidence and that of Dr  Marshman  is limited in this case. That is for the reason that there are only minor differences between them concerning what took place at the preoperative consultation. One difference is that Ms Morocz insists from memory that Dr  Marshman  referred to a cure whereas he was forced to resort to his usual practice to refute the suggestion that he did so.

Dr  Marshman 

  1. Dr  Marshman  was equally impressive. He was appropriately cross-examined by Mr Anderson of counsel and he responded accordingly.
  2. Dr  Marshman ’s evidence about his reference to a cure was as follows:

“Q. Didn’t you say this; the success rate is 99% and not 100% because there's always a small chance of not completely dividing the chain and it retaining its function, but once the chain has been divided it should cure the sweating?

A. Yes, but I wouldn't have used the term ‘cured’.

...

Q. In any event, whatever words you told her, you led her to believe, did you not, that providing the chain was divided as intended by the surgery, the palm sweating would not recur?

A. There's 98 and 99% chance when you divide the chain the hands will dry, all right? The other effects of the operation are not secure. That is basically the one thing that you can be quite secure about.

Q. So you certainly did not mention to her the prospect of recurrence of the problem?

A. The 99 to 98% is not a complete 100% - as you say - cure.”

  1. Dr  Marshman  said that he warned Ms Morocz about intercostal neuralgia:

“Q. You didn't warn her about intercostal neuralgia, did you?

A. Yes, I did warn her about intercostal neuralgia.

Q. I suggest that you did not warn her about neuralgia in any form.

A. No, I did warn her.

Q. You certainly didn't explain, did you, that neuralgia can cause persistent and disabling pain.

A. I would have - I warned her about intercostal neuralgia.

Q. You did not warn her that neuralgia can cause unremitting and debilitating pain, did you?

A. No.”

  1. Dr  Marshman  told Ms Morocz that the operation could not be reversed.
  2. There was a faint criticism of Dr  Marshman  to the extent that he was forced to resort to his usual practice in order to retrieve a recollection, or at least an account, of what he told Ms Morocz. His evidence about that was as follows:

“Q. Dr  Marshman , when you provided your statement you said that - quite candidly and understandably - that you could not clearly remember this pre-operative consultation and then you set out your usual practice.

A. Yes.

Q. You would acknowledge, wouldn’t you, that you would deviate from following your usual practice depending upon the circumstances.

A. Yes.

Q. In other words, you don't say that it was an invariable practice.

A. It was my usual practice.”

  1. Any criticism of Dr  Marshman  about his resort to usual practice to explain the consultation was ultimately not terribly important as the differences between the two versions are limited. It is not therefore necessary in this case to take account of or apply or specifically analyse the remarks of, say, Basten JA in Elayoubi v Zipser [2008] NSWCA 335 at [86] as follows:

“[86] In respect of the first contention, the challenge is unpersuasive because it relies upon a purported acceptance of 'usual practice’. Evidence of usual practice may be of assistance in circumstances where mechanical steps or routine tasks are in issue and the witness who supposedly undertook the task on a particular occasion has no recollection of the occasion. The weight to be given to such evidence will depend upon the possibility or likelihood of departure from such practice. However, the present case was not concerned with a mechanical step or routine task: it was concerned with a quite unusual procedure in professional practice. Nor was the task itself in any sense mechanical: rather, it involved conveying important medical information to a patient in a hospital ward.”

  1. Dr  Marshman ’s letter dated 4 August 2006 reporting on his consultation with Ms Morocz to her general practitioner contains references to matters that Dr  Marshman  said he would have referred to as part of his usual practice. The letter contemporaneously records compensatory hyperhidrosis and intercostal neuralgia, among other things, as risks of the procedure. It also refers to “a lifelong history of palmar hyperhidrosis” and Ms Morocz’ mother’s similar problem. Quite significantly it specifically records Ms Morocz’ disinclination to have Dr  Marshman  examine her hands. In my opinion it is highly unlikely that Dr  Marshman ’s early recording of that unremarkable fact would have been anything but truthful and accurate, having regard to the time when it was made.

Conclusions

  1. I have been urged by opposing counsel to accept their respective clients as truthful to the exclusion of the other where conflicts or differences between them exist. Those submissions are far too blunt to be helpful on this issue. I have every confidence that both parties to this litigation have done their best to give an accurate account of their recollections. I am however satisfied that Dr  Marshman  used the word “cure” in his discussion on 3 August 2006. I also consider, however, that he used that word in the context of Ms Morocz’ understanding that “there is a 98 percent assurance that she will have dry hands”, as referred to in his letter to the general practitioner. I am also satisfied that Dr  Marshman  referred to intercostal neuralgia.
  2. Beyond those differences, Ms Morocz and Dr  Marshman  are not relevantly at odds about who said what or to whom at the 3 August 2006 consultation.
  3. I accept that Ms Morocz has given a truthful account of her immediately post-operative experiences and of her condition since then. It is in the circumstances forensically unremarkable that Ms Burke of counsel for Dr  Marshman  did not significantly challenge her about such matters.

The pleaded case

  1. Ms Morocz contends that Dr  Marshman  failed to warn her of a series of things that he should have warned her about that were known risks and complications of the surgery concerned. His current statement of claim also alleges more broadly that Dr  Marshman  failed in certain other specified respects to tell her things that, having regard to the severity of her presenting symptoms on the one hand and the known or anticipated success rate for the operation on the other hand, he should have mentioned.
  2. Ms Morocz’ complaints are as follows:
  3. In broad terms the matters referred to in (1) above represent what Ms Morocz contends were the known or recognised risks or side effects of the procedure in 2007. She contends that Dr  Marshman  had an obligation to warn her of these but failed to do so. The factors referred to in (2) above are in general a collection of matters that, whilst not risks or side effects strictly so called, were pieces of information that Dr  Marshman  also allegedly had an obligation to provide or explain. Item (3) above concerns a discrete allegation about the potentially misleading consequences for Ms Morocz of Dr  Marshman ’s alleged use of the term “cure” in the context of her consideration of whether or not to undergo the operation at all.

The duty to warn and informed consent

  1. The majority in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 489-490 said this:

“The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors. Examination of the nature of a doctor-patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession. Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment. Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information.” [Citations omitted]

  1. A useful recent discussion of this topic can be found in Montgomery v Lanarkshire Health Board [2015] UKSC 11 at [81]- [87] as follows:

“[81] The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.

[82] In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. This can be understood, within the traditional framework of negligence, as a duty of care to avoid exposing a person to a risk of injury which she would otherwise have avoided, but it is also the counterpart of the patient's entitlement to decide whether or not to incur that risk. The existence of that entitlement, and the fact that its exercise does not depend exclusively on medical considerations, are important. They point to a fundamental distinction between, on the one hand, the doctor's role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved.

[83] The former role is an exercise of professional skill and judgment: what risks of injury are involved in an operation, for example, is a matter falling within the expertise of members of the medical profession. But it is a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgment. The doctor's advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient's entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person's rights rests with the courts, not with the medical professions.

[84] Furthermore, because the extent to which a doctor may be inclined to discuss risks with a patient is not determined by medical learning or experience, the application of the Bolam test to this question is liable to result in the sanctioning of differences in practice which are attributable not to divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients.

[85] A person can of course decide that she does not wish to be informed of risks of injury (just as a person may choose to ignore the information leaflet enclosed with her medicine); and a doctor is not obliged to discuss the risks inherent in treatment with a person who makes it clear that she would prefer not to discuss the matter. Deciding whether a person is so disinclined may involve the doctor making a judgment; but it is not a judgment which is dependent on medical expertise. It is also true that the doctor must necessarily make a judgment as to how best to explain the risks to the patient, and that providing an effective explanation may require skill. But the skill and judgment required are not of the kind with which the Bolam test is concerned; and the need for that kind of skill and judgment does not entail that the question whether to explain the risks at all is normally a matter for the judgment of the doctor. That is not to say that the doctor is required to make disclosures to her patient if, in the reasonable exercise of medical judgment, she considers that it would be detrimental to the health of her patient to do so; but the ‘therapeutic exception’, as it has been called, cannot provide the basis of the general rule.

[86] It follows that the analysis of the law by the majority in Sidaway is unsatisfactory, in so far as it treated the doctor's duty to advise her patient of the risks of proposed treatment as falling within the scope of the Bolam test, subject to two qualifications of that general principle, neither of which is fundamentally consistent with that test. It is unsurprising that courts have found difficulty in the subsequent application of Sidaway, and that the courts in England and Wales have in reality departed from it; a position which was effectively endorsed, particularly by Lord Steyn, in Chester v Afshar. There is no reason to perpetuate the application of the Bolam test in this context any longer.

[87] The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce, subject to the refinement made by the High Court of Australia in Rogers v Whitaker, which we have discussed at paras 77-73. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

  1. In Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [60] – [61], Gummow J spoke of the identification of the risk:

"The identification of the risk

[60] It is established by Rogers that a medical practitioner owes a duty 'to warn a patient of a material risk inherent in the proposed treatment'. However, that proposition in turn poses further questions.

[61] The first question is 'what "risk" is being spoken of here?' Put another way, it is 'what are the facts and circumstances, the possibility of the occurrence of which constitutes that "risk"?' Once that question is answered one may turn to consider whether the risk is 'material'. Where the action is brought in negligence and the plaintiff is seeking compensation for an injury suffered, the relevant risk is the possibility that the proposed treatment will result in the injury that in fact occurred. It is not, for example, the risk that the patient will make an uninformed decision or choose the wrong option, although that may well underpin the rationale behind the duty."

  1. Reference should also be made to the dissenting speech of Lord Scarman in Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] UKHL 1; [1985] AC 871 at 876, cited with approval by Gleeson CJ in Rosenberg v Percival at [6] as follows:

"[6] Rejection of the doctor's argument involved deciding not to follow the English decisions of Bolam v Friern Hospital Management Committee, and Sidaway v Governors of Bethlem Royal Hospital. This Court preferred the approach of Lord Scarman, who dissented in Sidaway, and who said:

'In my view the question whether or not the omission to warn constitutes a breach of the doctor's duty of care towards his patient is to be determined not exclusively by reference to the current state of responsible and competent professional opinion and practice at the time, though both are, of course, relevant considerations, but by the court's view as to whether the doctor in advising his patient gave the consideration which the law requires him to give to the right of the patient to make up her own mind in the light of the relevant information whether or not she will accept the treatment which he proposes.' (emphasis added)"

  1. Counsel for Ms Morocz also drew attention to what was said in Gover v South Australia (1985) 39 SASR 543 at 551 as follows:

“In F v R (1983) 33 SASR 189 at 192-194 King J had this to say about the duty of disclosure by doctor to patient:

‘The extent of the duty to disclose is to a degree limited by the consideration that the essential task of the doctor is the care and treatment of the patient. The purpose of disclosure is to provide the patient with the information necessary to enable him to make informal decisions concerning his future and, in particular, whether to undergo proposed treatment. The duty extends therefore only to matters which might influence the decisions of a reasonable person in the situation of the patient. A risk of harm or of failure might be so slight in relation to the consequences of not undergoing the proposed treatment that no reasonable person would be influenced by it. The duty to disclose does not extend to such a risk. Of course a small risk of great harm would not. A doctor is not expected to spend an inordinate amount of time conjuring up fanciful fears in the mind of the patient by stressing risks which are not sufficiently substantial to be a factor in the decision making of a reasonable person ... The more drastic the proposed intervention in the patient’s physical make-up the more necessary it is to keep him fully informed as to the risks and likely consequences of the intervention.

...

In many cases an approved professional practice as to disclosure will be decisive. But professions may adopt unreasonable practices. Practices may develop in professions, particularly as to disclosure, not because they serve the interests of the clients, but because they protect the interests or convenience of members of the profession. The court has an obligation to scrutinize professional practices to ensure that they accord with the standard of reasonableness imposed by the law. A practice as to disclosure approved and adopted by a profession or a section of it may be in many cases the determining consideration as to what is reasonable. On the facts of a particular case the answer to the question whether the defendant’s conduct conformed to approved professional practice may decide the issue of negligence, and the test has been posed in such terms in a number of cases. The ultimate question, however, is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community’.”

  1. In short, identification of the known risks and side effects of a particular surgical procedure is a matter for suitably qualified expert medical opinion. The question of whether or not a particular medical practitioner has or has not fulfilled his or her duty to warn the prospective surgical candidate of such risks or side effects, and the materiality of such risks, is a question for the court to determine.

The statutory framework

  1. A number of sections of the Civil Liability Act 2002 (NSW) are relevant in varying degrees to the present inquiry. They are as follows:

"5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation'), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability').

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5H No proactive duty to warn of obvious risk

(1) A person ('the defendant') does not owe a duty of care to another person ('the plaintiff') to warn of an obvious risk to the plaintiff.

(2) This section does not apply if:

(a) the plaintiff has requested advice or information about the risk from the defendant, or

(b) the defendant is required by a written law to warn the plaintiff of the risk, or

(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

5I No liability for materialisation of inherent risk

(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

(2) An 'inherent risk' is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.

5O Standard of care for professionals

(1) A person practising a profession ('a professional') does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

5P Division does not apply to duty to warn of risk

This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service."

What risks or side effects should Ms Morocz have been warned about?

  1. There is general agreement among the experts in this case concerning the known or recognised risks or side effects of a bilateral endoscopic thoracic sympathectomy in 2007. During the concurrent evidence session the following views were expressed:

“HIS HONOUR: Apart from that criticism, do you discern that there are any risks or side effects known in the profession in 2007, and not referred to in the brochure that you think should have been?

WITNESS REILLY: No.

HIS HONOUR: All right, Dr Harris, what's your view?

WITNESS HARRIS: It was a brochure designed to provide information for patients as a background to discussion with their doctor and I thought it reasonably covered the topic, and there were no material matters in there that I thought were omitted.

HIS HONOUR: Thank you. Dr Hugh?

WITNESS HUGH: My answer to your proposition, your Honour, is no.

HIS HONOUR: Thank you. Dr Morris?

WITNESS MORRIS: I don't have the brochure in front of me but I'm comfortable with what others have said.

WITNESS TOMLINSON: No.

HIS HONOUR: Your answer is no?

WITNESS TOMLINSON: Mm.”

  1. Importantly, for presently relevant purposes, the extracted portion of the evidence enables me by reference to the document conveniently to isolate the critical matters which the experts all agreed were the set of known risks or side effects of the procedure undertaken by Ms Morocz in 2007.
  2. A review of the brochure indicates that those risks or side effects are as follows:

Risks

(a) Allergic reaction to anaesthetic agents or drugs;
(b) Infection at the site of the operation;
(c) Damage to arteries, veins or nerves that run beneath each rib;
(d) Bleeding or inflammation of the nerve with chronic irritation or pain;
(e) Cardiac problems (heart attack, abnormal rhythm);
(f) Stroke;
(g) Pneumonia;
(h) Blood clots;
(i) Urinary tract infection.

Side effects

(j) Compensatory sweating in 50-60% of patients, for example, on the face, abdomen, back, buttocks, thighs or feet;
(k) Severe compensatory sweating that interferes with a patient’s lifestyle in 5-10% of patients;
(l) Gustatory sweating in 5-10% of patients although rarely severe;
(m) Horner’s syndrome.
  1. In addition to the risks and side effects, the brochure asserted that the procedure would “cure approximately 95-98% of excessive hand (palmar) hyperhidrosis and approximately 75-80% of armpit (axillary) hyperhidrosis.” It also warned, in the light of the known risks and side effects of surgical procedures in general, that “non-invasive medical forms of therapy should be tried prior to surgery” and that “[i]t is only when these prove to be unsuccessful or impractical for long-term use that a surgical procedure should be contemplated.”
  2. I note that in some cases there may be a separate issue concerning the adequacy or otherwise for warning purposes of providing a patient only with a brochure concerning an operation that is being contemplated. However, the question of whether or not, or to what extent, Dr  Marshman  complied with his duty to warn Ms Morocz of the risks and side effects of the procedure by giving her a copy of the document referred to earlier has not achieved this kind of significance in these proceedings. There are several reasons for that. First, Dr  Marshman  gave a preoperative warning about the risks and side effects of the operation to Ms Morocz at the August 2006 consultation. Even though there is some dispute about the content of their conversation at that time, this is not a case of the patient receiving only a pamphlet or brochure without more. Secondly, as I have indicated elsewhere, I have no doubt that Ms Morocz both read and understood what the brochure contained. That included a clear warning that surgery should only be contemplated after a trial of non-invasive therapies. Thirdly, Dr  Marshman  was entitled to take account of Ms Morocz presentation and her apparent ability to understand what he said to her personally as well as her ability to understand what was provided to her in writing. Fourthly, the brochure significantly conformed to the terms of the warning that even on Ms Morocz’ own account Dr  Marshman  gave her, so that it emphasised and reinforced, rather than contradicted or clouded, whatever she was told directly. Dissimilarities between indicative percentages of the incidence of intra-operative or post-operative side effects or complications referred to in the initial consultation and those referred to in the brochure do not in my view derogate from that conclusion.

Was Ms Morocz warned about any of the risks and side effects that she alleges she was not warned about?

  1. Ms Morocz alleges that she was not warned about a number of risks and side effects. Some of these risks and side effects are not to be found included within the matters identified by the experts as the known risks and side effects of a bilateral endoscopic thoracic sympathectomy itemised above. Despite that, Ms Morocz continues to emphasise that she was not warned about the following matters:
  2. I observe with respect to intercostal neuralgia that it was never alleged in any version of Ms Morocz’ pleadings that intercostal neuralgia or neurological pain was something that Dr  Marshman  should have warned her about. However, intercostal neuralgia is referred to by Dr  Marshman  as one of the things that he would customarily tell patients about and Ms Morocz experienced severe post-operative pain from the development of a pneumothorax. She also continues to complain of generalised neuropathic pain at various locations. Because the issue has arisen, albeit in a somewhat unstructured way, it also requires some analysis in what follows.
  3. It is convenient to deal with these matters in turn taking into account the conversation that Ms Morocz and Dr  Marshman  agree (in slightly differing terms) that they had, as well as the terms of the brochure that she was given. My findings concerning whether Ms Morocz was warned of these matters or any of them, despite the fact that some of them have not been identified by the experts as known risks or side effects, is included in what follows.

The return of palmar hyperhidrosis

  1. This allegation is to be found in paragraph 6(a) of the amended statement of claim. Ms Morocz alleges that Dr  Marshman  failed to advise her of the likelihood that her palmar hyperhidrosis would return following the surgery.
  2. Neither Ms Morocz nor Dr  Marshman  suggests that Dr  Marshman  warned Ms Morocz in terms that she might experience “the return of [her] palmar hyperhidrosis”. The issue was only ever adverted to by reference to the percentage chances of success of the operation. Ms Morocz contends that she was warned that the operation had a success rate of 99-100 percent, clearly intimating that there was a small and insignificant chance that the intended purpose of the operation may not be achieved. As Ms Morocz recalls, Dr  Marshman  said “there is a 99–100 percent chance that the procedure will cure hyperhidrosis” but that there was “always a small chance of not completely dividing the chain.” Dr  Marshman  has said that the percentage range to which he referred were slightly larger, at 98 -100 percent, but in the scheme of things that difference is in my opinion both insignificant and irrelevant. The brochure describes the procedure as one that “will cure approximately 95-98 percent of excessive hand (palmar) hyperhidrosis”. The discussion on any version was about the chance or the prospect that in a very small number of cases the sweaty palms that Ms Morocz suffered from may not be permanently alleviated by the procedure. It is clear, and it must have been clear to Ms Morocz, that Dr  Marshman  was not giving her a guarantee that the operation was always successful in every case.
  3. I asked Dr  Marshman  a question about the operation in general terms. His answer touched upon its success rate:

“Q. You were just asked some questions suggesting it was at one time, perhaps now, considered to be a controversial procedure. What were the controversies that you understood attended its performance?

A. The controversies relate to the incidence of side effects associated with the procedure because you cannot guarantee the results or the effect of the procedure and that's an important part of discussion with patients pre-operatively. The autonomic nervous system, particularly the sympathetic nervous system, is a very diffuse and irregular nervous system. The anatomy is not secure. You can't be sure of what results you are going to get from the procedure. I can divide the nerve. I can't be sure of the results and that's what I make sure patients understand beforehand before they make a decision to go ahead with the procedure.”

  1. In my opinion, that qualified assessment of the surgery is adequately reflected both in what passed between Ms Morocz and Dr  Marshman  in the preoperative consultation and in the brochure that he gave her at the time.
  2. Nor do I consider that a reference to a “cure” alters this analysis. The use of that term in the brochure was clearly in context a reference to whether Ms Morocz could expect following the surgery never to have sweaty palms again. It was expressly limited by reference to the quoted percentages. Dr  Marshman  denied using the term himself when speaking to Ms Morocz. However, to the extent that there was a small residual chance that she might experience sweaty palms even after the surgery, the reference to a cure was clearly qualified and had to be understood accordingly. I consider that that was properly and adequately explained in the version of the conversation to which Ms Morocz refers, as well as in the brochure, quite apart from any marginally differing version referred to by Dr  Marshman . The very conversation in which Ms Morocz refers to Dr  Marshman  saying that the surgery “will cure the condition” contains a reference to Dr  Marshman  saying “the success rate is 99 percent and not 100 percent.” In other words, if Ms Morocz was advised that the operation was associated with a limited failure rate, she was simultaneously being advised that there was a corresponding chance that her sweaty palms might either not be eliminated or might return.
  3. I find that Ms Morocz was properly and adequately warned of the possibility that her palmar hyperhidrosis may return.

Disabling compensatory hyperhidrosis

  1. This allegation is to be found in paragraph 6(b) of the amended statement of claim. Ms Morocz alleges that Dr  Marshman  failed to advise her of the likelihood that she may suffer compensatory hyperhidrosis to a major or disabling extent as a result of the proposed surgery.
  2. It will be recalled that Ms Morocz said that Dr  Marshman  told her this about compensatory hyperhidrosis:

“Because you will no longer sweat on your hands - which is what you want - your body will need to redirect the sweating to other areas so that you can maintain thermoregulation. This is called ‘compensatory sweating’ because the body needs to compensate for the palms. It is a well-recognised side-effect of the procedure, and if you want to have this surgery you have to accept this as a potential complication. It occurs in about 40-50% of patients who undergo sympathectomy. Usually it is mild, but in a tiny percentage, about 1- 2% of people it can be severe...”

  1. Dr  Marshman s 4 August 2006 letter also specifically refers to compensatory hyperhidrosis. The topic would appear at least to have been raised in the course of the conversation, either by Dr  Marshman  or Ms Morocz, but in circumstances that led Dr  Marshman  to recall and to record it in his post-consultation report to the general practitioner. The letter refers to the complication as one of the risks involved with the surgery of which Ms Morocz was “aware”.
  2. The brochure referred to it as well:

“There are some potential side effects of the surgery. The most common of these is compensatory sweating which occurs in up to 50-60% of patients. One must remember that sweating is one form of regulating the body’s heat. If the operation prevents sweating in the upper chest, back and arms, it is possible that patients will notice a greater amount of sweating elsewhere in their body in order to compensate for the lack of sweating in the upper extremities. This is called ‘compensatory sweating’ and can occur on the face, abdomen, back, buttocks, thighs or feet. While this appears to be merely a nuisance for most patients, occasionally (5-10% of the time) it can be severe and interfere with the patient’s lifestyle.”

  1. Ms Morocz was cross-examined about compensatory sweating in the context of the reference to it in the brochure as follows:

HIS HONOUR: The question is, were you prepared to accept the risk as it was described in that paragraph?

A. As it was described by Dr  Marshman , yes.

Q. No. I think you were being asked whether or not you were prepared to accept the risk in terms that it was described in that paragraph. Is the answer yes or no, or is it somehow qualified, or what is the position?

A. Yes.

BURKE: When you point out to his Honour that the percentage rate, as identified in the information brochure, is different to that that you say Dr  Marshman  gave to you, that didn't cause you to change your mind about having the surgery performed, did it?

A. It was compensatory sweating, so no, it didn't.

Q. And you weren't concerned to the effect whereby you wanted to see Dr  Marshman  again before the surgery to discuss the difference between what you say he told you about the percentage rate for compensatory sweating and what you read in the brochure, did you?

A. Can you ask the question again please?

Q. You were not concerned to the extent whereby the difference in the percentage rate, describing compensatory sweating, that had been given to you by Dr  Marshman  and that described in the information brochure, to the extent whereby you asked to see him again to discuss it prior to the surgery, did you?

A. I accepted his explanation.

Q. And you also accepted what was contained in the information brochure, didn't you?

A. His explanation certainly priority.

Q. You were asked to read this, and you read this, and you accepted it, didn't you?

A. Yes, I read it.

Q. And you accepted what those risks were?

A. Yes.”

  1. It may be that the point of difference between the things Ms Morocz was told and the complaint that she makes is the use of the word “disabling”. That expression has to be understood in the context of the condition to which it refers. Hyperhidrosis can be disabling and distressing but it is not life threatening. The disabilities that are associated with the severest form of compensatory hyperhidrosis affect lifestyle when present. Dr  Marshman  contrasted merely nuisance sweating with severe sweating. His usual practice was to describe this as “a major complication” and to refer to severe cases in which the patient may find that his or her shirt will become soaked. The adjectival failure to describe this severe sweating as potentially disabling does not appear to me to be a failure to refer in proper terms to the known side effect of compensatory sweating or to its anticipated practical consequences in the most severe cases.
  2. I find that Ms Morocz was properly and adequately warned of the possibility that she may suffer from compensatory sweating.

Decreased innervation of the heart

  1. This allegation is to be found in paragraph 6(c) of the amended statement of claim. Ms Morocz alleges that Dr  Marshman  failed to advise her of the likelihood that she would suffer decreased innervation of the heart.
  2. Innervation is the arrangement or distribution of nerves to an organ or body part. Dr  Marshman  did not in terms refer to the prospect that the procedure carried a risk of decreased cardiac innervation. However, Ms Morocz agreed that he told her that he performed the operation in a way that was associated with “the least chance of denervation.” That reference was not obviously a reference to cardiac function.
  3. Dr  Marshman  was not cross-examined about this but he was asked about it by me and in re-examination:

“Q. Is, in your opinion, decreased innervation of the heart a complication or side effect of this surgery?

A. I would call it a side effect, not a complication.

Q. Did you warn her of that?

A. No.

RE-EXAMINATION BY MR BURKE

Q. In answer to his Honour's question as to does the surgery cause innervation of the heart and - whether complication or side effect - you said to his Honour that yes it was a side effect and you didn't warn of that side effect. Why was that?

A. It's variable. Some patients will have a lowering of their heart rate, some won't but there's no clinical impact on the patient. There's no reduction in exercise capacity or clinical impact on the patient.”

  1. I find that Ms Morocz was not warned of the possibility that the procedure may cause her to suffer from decreased innervation of her heart.
  2. However, this is not something that I consider Ms Morocz should have been warned about by Dr  Marshman . It is not one of the agreed identified risks or side effects of the operation. None of doctors Tomlinson, Morris or Reilly, who provided reports for Ms Morocz, suggested in their reports that decreased innervation of the heart was an inherent or material risk of the surgery or something about which Dr  Marshman  should have warned her. Nor was this a topic of discussion or consideration by the experts in their surgical conclave. Moreover, decreased innervation is a description of a possible physical consequence of the operation that may or may not correspond to the manifestation of some unwanted or unanticipated result for a patient.
  3. 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. If decreased innervation of the heart is something that might potentially have sounded in altered heart rhythm, for example, then that is what the surgeon should warn about. With great respect to Ms Morocz’ case and to those responsible for particularising it, her complaint of Dr  Marshman ’s failure to refer to decreased innervation of the heart appears to be more the result of a perceived pleading opportunity than the identification of a substantial risk of the surgery about which she should have been warned. It is the examination of the content or substance of the warning that is important rather than the minute dissection of the particular words that may have been used to convey it.
  4. I find that Dr  Marshman  was not obliged to advise Ms Morocz of the possibility that the procedure may cause her to suffer from decreased innervation of the heart.

Bradycardia

  1. This allegation is to be found in paragraph 6(d) of the amended statement of claim. Ms Morocz alleges that Dr  Marshman  failed to advise her of the likelihood that she would suffer bradycardia as a result of the proposed surgery.
  2. Bradycardia is a measured slowing of the heart rate. Dr  Marshman  did not suggest that he referred to this as a risk or side effect of the procedure and specifically conceded in evidence before me that he did not. His evidence about this was as follows:

“ANDERSON: Were you aware that bradycardia - this is at 2006 - were you aware that bradycardia was a known side effect or complication of endoscopic thoracic sympathectomy?

A. Yes.

HIS HONOUR: Sorry. Before you go on.

Q. Did you discuss bradycardia with the plaintiff pre-operatively?

A. No. No.

...

HIS HONOUR: Mr Anderson, can I just interrupt you a moment? A moment ago you asked the doctor whether or not bradycardia was a known side effect or risk, depending on which way you analyse it, of this procedure. He said yes. I asked him whether or not he warned, or discussed that with the plaintiff. He said no. I return again to the analysis I continue to find relevant and that is to say the comparison between the side effects or risks of the procedure that were known, of which on your case the plaintiff wasn't warned.

ANDERSON: Yes.

HIS HONOUR: That's what this case is about, isn't it?

ANDERSON: Well, in part, your Honour, but there is another side to it as well, and that is that - well, I don't want to - as I opened to your Honour--

HIS HONOUR: I'd just like to get a little understanding about all of those risks that you say this doctor failed to warn. Could we just not have them on the table?

ANDERSON: Yes.

HIS HONOUR: Sooner rather than later. I don't mean to sound - I don't mean to interrupt you, but I'd just like to get to the pointy end of what this case is about.

ANDERSON: I was proposing to come to the actual--

HIS HONOUR: All right. Why don't I take a break and we can all gather our thoughts...

...

ANDERSON: You did not warn her about bradycardia. I think you - the risk of bradycardia and you've already agreed. Correct?

A. Correct.

...

BURKE: You said you did not warn in relation to bradycardia. Why not?

A. Because there's no clinical implication for the patient.”

  1. The brochure does not mention it in terms. The brochure does refer to a risk of “cardiac problems” including “abnormal rhythm”. No elucidation or specific explanation of that risk or side effect is otherwise mentioned. None of doctors Tomlinson, Morris or Reilly, who provided reports for Ms Morocz, suggested in their reports that bradycardia was an inherent or material risk of the surgery or something about which Dr  Marshman  should have warned her. Nor was this a topic of discussion or consideration by the experts in their surgical conclave, although a slightly different emphasis emerged from these doctors when giving concurrent evidence before me. This is referred to below.
  2. I find that Ms Morocz was not warned of the possibility that she may suffer from or experience bradycardia. I find that she was warned that some patients may suffer from abnormal heart rhythm.
  3. Differences of opinion emerged in evidence before me about whether bradycardia was a matter that Ms Morocz should have been warned about by Dr  Marshman . Dr  Marshman  gave his opinion about it during his evidence. The relevant evidence of the respective experts on this subject is as follows.

“ANDERSON: Finally, if I might ask all you, starting with Dr Harris, I'm about to give you four side effects or complications. My question is, in two parts, first, as at 2006, were the following complications and side effects known to be associated with ETS and secondly, in the exercise of reasonable care, should a surgeon contemplating offering the procedure, have warned his patient of each of them. They are, first: the post-operative return of palmar sweating, secondly, abnormal and severe sweating in the lower body triggered by emotional discomfort, stress or temperature, and sufficient to cause soaking of clothing. Third, severe neuropathic pain, and fourth, bradycardia...

WITNESS HARRIS: May I take those in turn?

...

The other one related to bradycardia. A minor beta blocker effect after the surgery has been observed and is usually minor and well tolerated. In her case I understand that she both resting measurement of pulse and blood pressure which were within normal limits and also had an exercise test which was within normal limits. So if there was any beta blocker effect it was very minor in her

HIS HONOUR: Don't worry so much about the plaintiff. The question is whether or not in your practice you would have...

WITNESS HARRIS: Back in 2006

HIS HONOUR: Hold on. My question needs to be asked otherwise your answer will be swinging in the wind. Is it something that you would draw to the attention of patients as a prospective risk?

WITNESS HARRIS: In 2006, no, not about bradycardia.

...

WITNESS HUGH: Bradycardia was your last item. That means slowing of the heart. I certainly didn't warn patients in 2007 about that, even though I was aware that there were experimental studies in the literature to show it, and there was a record of it happening after sympathectomy, and strangely, papers which said that it happened sometimes after unilateral sympathectomy and it didn't seem to matter which side it was done on. That seemed to me very difficult to explain in physiological terms, but in any case, my reading of the literature and my experience with patients suggested that although a lot of patients would have a slow resting heart rate, that's Bradycardia, they were able to respond to exercise, and therefore it wasn't really in the great majority of patients of any clinical significance.

If they were athletes or marathon runners, I would have warned them about the possibility that their cardiac response may be diminished by sympathectomy, and there were a number of steps that kind of person could take to overcome the effects of that, such as ensuring they drank large volumes of water et cetera. So I didn't routinely warn about bradycardia as a possible side effect.

HIS HONOUR: Dr Morris?

WITNESS MORRIS: I didn't do this operation in 2006 or 2007, which gets me off the hook, but if I had been doing this, I really hope I would have warned about all four things.

HIS HONOUR: Dr Tomlinson?

WITNESS TOMLINSON: Well, my short answer is, yes, I would warn them, and I would warn them of all complications, but I was also, as I said before, I don't do these in a combined procedure, left and right; I do them as a staged procedure, and so that my understanding of it was that actually reduced the risk of a lot of those complications, especially the... (not transcribable)... problems.

HIS HONOUR: Dr Reilly?

WITNESS REILLY: ... The bradycardia, I doubt that I would have been aware of this as a significant complication and I may well not have advised that and I note that even in the current neurosurgical literature, that is not included as one of the complications that are regarded as significant. Nonetheless, after today's discussion, I would probably advise that that be included.”

  1. There is clearly a divergence of views concerning whether or not bradycardia was something of which Ms Morocz should have been warned. This was so even notwithstanding that the experts elsewhere otherwise agreed that the brochure, which did not mention bradycardia, in effect, covered the field. Doctors Harris and Hugh did not favour the warning, while doctors Morris, Tomlinson and Reilly did. Dr Reilly’s opinion is slightly unclear to the extent of his confessed unfamiliarity with bradycardia as a complication of the surgery. His process of reasoning toward acceptance of the proposition that a warning about it should be given, based upon “today’s discussion” is not explained and is not otherwise clear to me.
  2. Dr Morris did not perform the operation at the relevant time so that his opinion about its complications in general or bradycardia in particular is to that extent somewhat tenuous. Doctor Tomlinson’s opinion suggests that he would have warned of bradycardia but the transcription of his evidence at the relevant point is incomplete and no accurate record of his views is available.
  3. Bradycardia is not referred to in the brochure. Doctors Harris and Hugh are clear that it would not have been mentioned by them. Professor Harris said in his 25 January 2011 report that he “would not consider the potential side effects from [bradycardia] to be a material risk inherent to thoracic sympathectomy.” The remaining surgical specialists did not express their opinions about this issue in what I consider to be confident or emphatic terms. Professor Watson, however, was asked about this briefly in cross-examination and commented as follows:

“Q. ... I think it's accepted that this particular treatment, that is endoscopic thoracic sympathectomy, is known to produce bradycardia and altered chronotropic response?

A. It can do that and that's what one would predict from sympathectomy at the high end of the thoracic outflow. It can cause a degree of bradycardia and it can cause other altered responses. It can. In fact that's what you're trying to achieve, I suppose.”

  1. The risk under consideration must be sufficiently substantial to be a factor in the decision making of a reasonable person. The inquiry is not concerned with a risk of harm or of failure that is so slight that no reasonable person would be influenced by it. A doctor cannot be expected to spend an inordinate amount of time conjuring up fanciful fears in the mind of a patient.
  2. When analysed, the bradycardia in question is a physiological consequence or result of the sympathectomy procedure. It is not definitively pathological, in the sense that it is dangerous to the health of the patient, or disabling, or associated with the onset or development of some other condition. That is what I take Dr  Marshman  to have been referring to when he said that it had no clinical implication. It has not been shown by the evidence in this case to be painful, uncomfortable, distressing, inconvenient, or that it requires further medical intervention or medication. It is not said to be associated with other medical consequences of any sort beyond the fact of the condition itself, meaning that the patient’s heart rate may become slower. It would seem in all of the circumstances to be about as significant and material as the risk of scarring at the site of the bilateral operative endoscopic incisions, about which no one suggests a patient ought to be warned.
  3. On balance I do not consider that bradycardia was something of which Ms Morocz should have been warned.
  4. At a slight remove from this it is arguable that a failure to mention bradycardia or to use that term may be of some importance or consequence if either the failure to refer to the condition that it describes or refers to also corresponded to a failure to advise or to warn of a known risk or side effect or if the failure improperly overlooked a discussion, or disguised the prospect of occurrence, of either. In this case, an abnormal heart rhythm is a known and identified possible risk or side effect of a sympathectomy. A slowing of the heart rate would seem to qualify on one view as an abnormal heart rhythm. Apart from a reference to abnormal rhythm in the brochure, the evidence suggests that Dr  Marshman  did not mention to Ms Morocz that she may experience a slowing of her heart rate. I take for present purposes her complaint to be that he should have done so.
  5. Abnormal rhythm of the heart was a known risk or side effect of the sympathectomy procedure in 2007 but only in patients who were in the older age group. That category is not defined. In my opinion, if Ms Morocz fell within the group of patients who were arguably susceptible to a post-operative interference with heart rhythm then it was something that Dr  Marshman  should have mentioned in his pre surgical consultation with her. It is clear that he did not do so. Indeed, whereas the brochure included the wider topic of cardiac problems as a known risk of the procedure, Dr  Marshman  did not take Ms Morocz to that topic at all.
  6. However, in my opinion Dr  Marshman  was under no obligation to mention this at all. First, Ms Morocz was 39 years old when the surgery was performed and so was clearly, or at least arguably, outside the range of patients for whom this warning was necessary or advisable. Secondly, there is no material before me that an alleged slowing of the heart rate is the same thing as an abnormal rhythm of the heart. There is a difference between the measurement of the number of heart beats per minute on the one hand and the amplitude of the heart beats or the regularity of the timing of those heart beats on the other hand. The abnormal cardiac side effect noted in the preoperative brochure is quite different to a slowing of the heart rate that Ms Morocz asserts she should have been warned about and does not apply to her in any event. Dr Harris referred in his 25 January 2011 report to the fact that “a practising specialist in 2006 and 2007 would be aware...that sympathectomy could have a minor beta-blocker-like effect on the heart.” But once again as just mentioned above, he went on to qualify that by saying “I would not consider the potential side effects [of decreased innervation of the heart, bradycardia and intolerance to exercise] from this to be a material risk inherent to thoracic sympathectomy.”
  7. I remain of the view Dr  Marshman  was not obliged to refer Ms Morocz to the possible risk that she may suffer from or experience post-operative bradycardia.

Intolerance to exercise

  1. This allegation is to be found in paragraph 6(e) of the amended statement of claim. Ms Morocz alleges that Dr  Marshman  failed to advise her of the likelihood that she may suffer intolerance to exercise as a result of the proposed surgery.
  2. Dr  Marshman  did not refer to this at all, either in his usual practice format or in his conversation with Ms Morocz. She also did not suggest that Dr  Marshman  mentioned it in the course of her version of the preoperative consultation.
  3. I find that Ms Morocz was not warned of the possibility that she may experience some intolerance to exercise.
  4. This is not a known side effect or risk of the procedure. None of doctors Tomlinson, Morris or Reilly, who provided reports for Ms Morocz, suggested in their reports that intolerance to exercise was an inherent or material risk of the surgery or something about which Dr  Marshman  should have warned her. Nor was this a topic of discussion or consideration by the experts in their surgical conclave.
  5. I asked Dr  Marshman  about this topic:

“Q. Is intolerance to exercise a side effect or a complication of the procedure?

A. No.”

  1. The matter was not pursued further.
  2. Its genesis as a matter of interest in this case seems to be a letter received by Ms Morocz from a Dr Goldstein in December 2007. Be that as it may, the experts all agreed that this was not something that was thought to be associated with the performance of a bilateral endoscopic thoracic sympathectomy, and Dr  Marshman  was not recalcitrant in failing to mention it to Ms Morocz.
  3. In my view Dr  Marshman  was not obliged to refer Ms Morocz to the possible risk that she may suffer from or experience intolerance to exercise.

Impairment of emotional responses

  1. This allegation is to be found in paragraph 6(f) of the amended statement of claim. Ms Morocz alleges that Dr  Marshman  failed to advise her of the likelihood that she might suffer impairment of her emotional responses as a result of the proposed surgery.
  2. This was not referred to by Dr  Marshman  at any time.
  3. I find that Ms Morocz was not warned of the possibility that she may experience an impairment of her emotional responses.
  4. I do not consider that Dr  Marshman  was required to warn of this. None of doctors Tomlinson, Morris or Reilly, who provided reports for Ms Morocz, suggested in their reports that impairment of emotional responses was an inherent or material risk of the surgery or something about which Dr  Marshman  should have warned her. Nor was this a topic of discussion or consideration by the experts in their surgical conclave. Dr Harris specifically referred to this in his 25 January 2011 report saying, “a practising specialist in 2006 and 2007 would be aware that any form of surgery can be followed by an emotional response” but that he “would not consider this to be a material risk inherent to thoracic sympathectomy.”
  5. I asked Dr  Marshman  about this topic:

“Q. Is impairment of emotional response a side effect of the procedure?

A. No.”

  1. The matter was not pursued further.
  2. In my view Dr  Marshman  was not obliged to refer Ms Morocz to the possible risk that she may suffer from or experience impairment of emotional responses.

Debilitating headaches

  1. This allegation is to be found in paragraph 6(g) of the amended statement of claim. Ms Morocz alleges that Dr  Marshman  failed to advise her of the likelihood that she might suffer debilitating headaches following the proposed surgery.
  2. I asked Dr  Marshman  about this topic:

“Q. Are debilitating headaches a side effect or risk of the procedure?

A. No.”

  1. The matter was not pursued further.
  2. I find that Ms Morocz was not warned of the possibility that she may experience debilitating headaches.
  3. Nowhere in the evidence in this case have headaches of any magnitude or strength been inculpated as a known possible or likely risk or side effect of the procedure. None of doctors Tomlinson, Morris or Reilly, who provided reports for Ms Morocz, suggested in their reports that debilitating headaches were an inherent or material risk of the surgery or something about which Dr  Marshman  should have warned her. Nor was this a topic of discussion or consideration by the experts in their surgical conclave. Dr Harris did not regard debilitating headaches to be an inherent risk of the procedure.
  4. In my view Dr  Marshman  was not obliged to refer Ms Morocz to the possible risk that she may suffer from or experience debilitating headaches.

Anxiety and depression

  1. This allegation is to be found in paragraph 6(h) of the amended statement of claim. Ms Morocz alleges that Dr  Marshman  failed to advise her of the likelihood that she might suffer anxiety and depression and other psychiatric disorder or pathology as a result of the proposed surgery.
  2. No psychological or psychiatric consequences were detailed in any way in the course of Dr  Marshman ’s pre-operative consultation or conversations with Ms Morocz.
  3. I find that Ms Morocz was not warned of the possibility that she may experience or suffer from anxiety or depression or any other psychiatric disorder or pathology.
  4. None of these troubling conditions is a risk or side effect of the procedure. None of doctors Tomlinson, Morris or Reilly, who provided reports for Ms Morocz, suggested in their reports that any of these problems was an inherent or material risk of the surgery or something about which Dr  Marshman  should have warned her. Nor was this a topic of discussion or consideration by the experts in their surgical conclave. Dr Harris did not regard anxiety or depression to be inherent risks of the procedure.
  5. In my view Dr  Marshman  was not obliged to refer Ms Morocz to the possible risk that she may suffer from or experience anxiety or depression or any other psychiatric disorder or pathology.

Undergoing the procedure at all

  1. This allegation is to be found in the combination of paragraphs 6(i) and 6(j) of the amended statement of claim. Those paragraphs are as follows:

“6(i) failed to advise the plaintiff adequately or at all whether surgical treatment was or was not appropriate having regard to the comparative lack of severity of the plaintiff’s symptoms;

6(j) failed to advise the plaintiff that she should trial conservative treatment before considering or consenting to surgical treatment.”

  1. Ms Morocz contends that she was not properly or adequately warned that she should not have the operation in the first place. A variant of this allegation is that she should have been warned only to have the operation in effect as a last resort or when all other conservative treatments had been tried without success. By the time that the parties made submissions at the end of the case, Ms Morocz’ written formulation of these particulars of negligence had been coupled with an allegation that Dr  Marshman  failed to examine Ms Morocz’ hands when she first consulted him. The allegations in paragraphs 6(i) and 6(j) had therefore developed into the following combination of propositions which Ms Morocz sought to propound as an effective summary of Dr  Marshman ’s breaches as pleaded in those subparagraphs of the amended statement of claim:
  2. The brochure given to Ms Morocz contained the following warning:

“Although ETS is overall a safe and highly effective method of treatment for the hyperhidrosis syndrome, it must be realized that it remains a surgical procedure with the inherent risks described above. As with most disorders, non-invasive medical forms of therapy should be tried prior to surgery. It is only when these prove to be unsuccessful or impractical for long-term use that a surgical procedure should be contemplated...”

  1. At his pre-operative consultation with Ms Morocz, Dr  Marshman  inquired of her history of palmar hyperhidrosis and what treatments she had tried to alleviate her symptoms. She told him that alcohol rubs at school had been tried once or twice but that it smelt bad and irritated her skin. He asked whether she had tried medication, which she said she had not. Botox injections were discussed but were said to be painful, required regular repeating and were quite expensive. Dr  Marshman  told Ms Morocz that none of the alternatives had the same level of effectiveness as the procedure.
  2. Dr  Marshman  asked Ms Morocz why she had decided to have the procedure. Partly in response Ms Morocz indicated that she had spent quite some time reading about the surgery on the internet. However, according to Ms Morocz, Dr  Marshman  said that the decision about whether or not she was a suitable candidate for the surgery was a medical decision that was up to him to make. Even if Ms Morocz decided that she would like to proceed with the surgery, the final decision was one for Dr  Marshman  to make on medical grounds. Dr  Marshman  told Ms Morocz that he had come to the conclusion that she was an appropriate candidate for the procedure.
  3. Ms Morocz first contends that she should have been told that the procedure was not warranted or appropriate having regard to the comparative lack of severity of her symptoms. I am not entirely certain of precisely what this allegation is intended to convey. For example, on Ms Morocz’ own case, the sweaty palms had troubled her since adolescence and had interfered with her ability to meet and interact with people in work related and social settings. She also remembered and related not liking to hold her mother’s hand as a child because her mother suffered from the same condition. The condition was never one that was liable to reach a physically disabling or life threatening stage, such as melanoma or macular degeneration, so that the severity or otherwise of Ms Morocz’ symptoms has to be understood in the context of the condition itself, and not by comparison with conditions requiring urgent surgical intervention or associated with a dire prognosis.
  4. As far as the evidence indicates, Ms Morocz’ symptoms were comparatively severe, and definitively so severe that conservative treatments had not worked. She was led in those circumstances to make inquiries about surgical intervention to alleviate the problem. There is also evidence that the problem was one that had afflicted other members of her family so that it was unlikely to respond favourably to conservative measures. Rhetorically, I find that the comparative severity of the symptoms is reliably informed by the fact that Ms Morocz had both conducted significant research into the operation and had sought out a surgeon to consult about it. Those things are unlikely to have occurred if the symptoms were not comparatively severe in the first place.
  5. The following things should also be noted. First, Dr  Marshman  gave evidence about his decision to perform the surgery and he was not really challenged about it. I do not wish to over-emphasise that point or its possible forensic significance beyond expressing disappointment that his opinion as the operating surgeon about whether the time had arrived to consider surgery, and whether it was “warranted”, might have been helpfully and informatively explored with him in more detail than it was. Secondly, whatever else may be said about the matter, Ms Morocz was herself complaining of palmar hyperhidrosis in graphic terms suggesting that her condition was of longstanding and had become quite serious for her. It was certainly never suggested that she did not suffer from a personally distressing and disabling condition from the effects of which she was anxious to obtain some form of long lasting relief. I find that she did.
  6. Dr Patel originally furnished a report to the lawyers for Dr  Marshman  dated 23 November 2011. Dr Patel is a physician who specialises in the treatment of hyperhidrosis. Dr Patel employed what he described as a hyperhidrosis disease severity scale for determining the severity of sweating experienced by a patient as follows:
  7. Based upon the history taken by him from Ms Morocz, Dr Patel concluded that her complaints placed her at level 2 on his scale. That history included a complaint by Ms Morocz to Dr Patel that she felt that her hands were then sweating more than before the surgery. He expressed this opinion about her:

“Based from the history and from my examination I do not believe that the patient has had any increased sweating following her sympathectomy procedure. In my opinion, purely based on history there appears to be no change pre-surgery to post-surgery and based on my examination and the minor iodine starch test there appears to be very little excessive sweating which can be confirmed on testing similar to that I routinely perform for patients with hyperhidrosis in my practice.”

  1. Ms Morocz also specifically relied upon some of the literature in this area of discourse. Exhibit G is an article entitled “A Comprehensive Approach to the Recognition, Diagnosis, and Severity-Based Treatment of Focal Hyperhidrosis: Recommendations of the Canadian Hyperhidrosis Advisory Committee.” Some extracts from that paper are as follows:

“Hyperhidrosis may have significant effects on patients’ lives including social embarrassment; interference with intimacy, activities of daily living, and certain kinds of employment; and physical discomfort and a negative impact on health-related quality of life...

Recommendations

Assessment

The first step in evaluation of a patient’s excessive sweating is to take a complete history and perform a physical examination. Additional laboratory testing is not required if the presentation is characteristic of primary focal hyperhidrosis...

Treatment

There are [sic, is] a wide array of modalities available to treat hyperhidrosis. These include non-surgical (i.e. topical, systemic) and surgical treatments that vary in their therapeutic efficacy, side effects, cost, and duration of effect. In all patients who present with hyperhidrosis, it is crucial that the disease severity be measured using the HDSS to determine proper course of treatment and to monitor the results of treatment...

HDSS Score of 3 or 4...

3. ETS should be the last resort in patients not responding to therapy. Patients must be well informed and willing to accept both the surgical risks and the significant risk of compensatory hyperhidrosis.”

  1. The HDSS scale is effectively the same scale as that used by Dr Patel. The Canadian article implicitly does not recommend surgery in cases falling below level 3 on the scale.
  2. Exhibit K is an article entitled “Hyperhidrosis: Evolving Therapies for a Well-Established Phenomenon.” It contained the following material:

“The socially embarrassing disorder of excessive sweating, or hyperhidrosis, and its treatment options are gaining widespread attention. In order of frequency, palmar-plantar, palmar-axillary, isolated axillary, and craniofacial hyperhidrosis are distinct disorders of sudomotor regulation. A common link among these disorders is an excessive, nonthermoregulatory sweat response often to emotional stimuli in body regions influenced by the anterior cingulate cortex as opposed to the thermoregulatory sweat response regulated by the preoptic-anterior hypothalamus. Diagnosis of these mechanistically ambiguous disorders is primarily from patient history and physical examination, whereas results of laboratory studies performed with indicator powder reveal the distribution and severity of resting hyperhidrosis and document the integrity of thermoregulatory sweating. Treatment options lie on a continuum based on the severity of hyperhidrosis and the risks and benefits of therapy. In general, therapy begins with antiperspirants or anticholinergics. Iontophoresis is available for palmar-plantar and axillary hyperhidrosis. Botulinum toxin type A or local excision/curettage is effective for isolated axillary hyperhidrosis not responsive to topical application of aluminium chloride. Endoscopic thoracic sympathectomy may be used for severe cases of palmar-plantar and palmar-axillary hyperhidrosis.

...

Historically, surgical sympathectomy was reserved for severe cases of palmar hyperhidrosis refractory to the more conservative therapies for several reasons: the invasive nature of the procedure, the need for general endotracheal anaesthesia and hospitalization, and perioperative complications. Several surgical approaches have been described, evolving to the minimally invasive video-assisted endoscopic thoracic sympathectomy (ETS)..”

  1. In his report dated 22 November 2012 Dr Hugh refers to a paper by A.E.P. Cameron entitled “Specific complications and mortality of endoscopic thoracic sympathectomy.” The abstract summary includes the following references:

“Despite the simplicity of the procedure, non-surgical options should always be considered as the first line of treatment.”

  1. In his 25 January 2011 report, Dr Harris offered the following opinion:

“In my opinion, in his treatment of the plaintiff, both in terms of explaining the potential benefits and complications and in the performance of the surgery...Dr  Marshman  did act in a manner that in 2006 and 2007 was widely accepted in Australia by peer professional opinion as competent professional practice.”

  1. Dr Reilly put it this way in his 13 July 2011 report:

Was the operation appropriate in the circumstance?

It is clear that thoracic sympathectomy is an accepted treatment for severe palmar hyperhidrosis, that is hyperhidrosis which is causing significant disruption to the person’s life and which has not responded to other forms of treatment. Although Ms Morocz had initially been referred via a general practitioner to a neurosurgeon and then, for consideration of surgery, to Dr  Marshman  it is not clear from the evidence presented to me whether Ms Morocz had undergone other forms of treatment or the extent to which the hyperhidrosis affected her daily life. Accepting the assumptions contained in your question xvii, she had not reached the point of having severe, intractable hyperhidrosis warranting consideration of thoracic sympathectomy.”

  1. The numbered question referred to by Dr Reilly was in these terms:

“xvii Was the procedure indicated in this particular case? In addressing this question, please assume:-

- Dr  Marshman  knew that Ms Morocz did not have ‘severe sweating’.

- When she was asked to nominate and describe the extent of her sweating, she described it as of ‘medium severity’.

- The condition did not hinder Ms Morocz professional or personal life.

- The surgeon assured Ms Morocz that it was the only effective and permanent ‘cure’.

- Ms Morocz was not desperate to have the surgery.

- Ms Morocz was happy to be placed on a waiting list notwithstanding being told by Dr  Marshman  that it might take six to twelve months.

- After being on the waiting list for 5 months, the surgery was scheduled but Ms Morocz declined it due to inconvenient timing and asked to be placed back on the waiting list (in other words, she was not all desperate to have the surgery.”

  1. Dr Morris discussed the issue in his 19 October 2012 report and expressed the following conclusions:

“I believe that the consent process used in this patient was inadequate for two reasons:

1. I believe that the use of non-surgical therapy and the outcomes of this were not discussed and depending on the severity of the symptoms I believe should have been tried before recommending surgery.

2...”

  1. Dr Tomlinson was asked whether the surgery was “on the balance of probabilities indicated in this particular case”. He was asked to make the same general assumptions about Ms Morocz. He said this in his 1 February 2010 report:

“On the balance of probabilities I do not believe that the surgical procedure on this patient was indicated as 1: Mrs Morocz did not appear to have severe sweating interfering with her lifestyle both at work and at leisure. Moreover, surgery would appear in this case to be the first line of treatment rather than (as recommended in the SDS Patient Information brochure) a trial of medical and/or non-surgical treatment. The only non-surgical treatment was carried out by the patient herself with the unsuccessful use of alcohol wipes.”

  1. Professor Watson gave evidence. Part of what he said was as follows:

“Q. So you would disagree if it's suggested in the literature relating to focal palmar hyperhidrosis that as a first trial antiperspirants of that nature should be used?

A. I wouldn't disagree with that but in my experience people really don't like it. They're smearing on something else on their hands in a condition where they're trying to stop a liquid that's smeared on their hands and their own sweat. Dermatitic reactions is almost universal and can occur quite soon and most of the patients that I've seen over the years have tried that briefly or have read about it, things like blogs and information and say, ‘I don't really want to try that’."

  1. He later gave this evidence:

“Q. But I think you would concede that if one trials endoscopic thoracic sympathectomy and the result is undesirable or unacceptable for the patient it cannot be reversed?

A. Yes.

Q. It is a fairly drastic treatment to use for a condition the effects of which may not be correspondingly troublesome for a patient? Would you not agree?

A. If that were the case, yes.”

  1. Even though Dr  Marshman  did not advise Ms Morocz that the surgery was not warranted, in my opinion there was nothing associated with the comparative severity of Ms Morocz’ symptoms that should have indicated to Dr  Marshman  that such a warning was required. The fundamental proposition for which Ms Morocz contends appears to conflate the legal requirement for warnings in cases of elective surgery and the potential ethical issues that attend the performance of such surgery. Some examples of surgical practice are instructive.
  2. 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.
  3. It was submitted on behalf of Ms Morocz that a valuable clue to the seriousness of her hyperhidrosis, or more particularly the lack of it, and its effect upon her can be gauged by reason of the fact that she waited until she was nearly 40 years of age before seeking out Dr  Marshman ’s assistance. She argued that the problem of sweaty palms was not severe or troubling enough to have led her any earlier to consider surgery and that the strongest available inference was that it was a minor complaint for her at the time. The difficulty with that proposition seems to me to be that the mere contemplation of surgery requiring a general anaesthetic, an operation involving the intra-operative sequential collapse of each lung, exposure to the usual surgical, as well as the specific, risks of the procedure and the prospect of inconvenient or even unpleasant continuing side effects is surely unlikely unless the presenting problem had reached the stage of a choice between competing evils. Perhaps even more pertinently in this case, Ms Morocz explained that she happened upon the procedure by chance in a newspaper article that she read in 2005, so that it is incorrect on the evidence to suggest that she had postponed the surgery for 20 years or more because it was not severe enough to require, or to have driven, her to seek out more drastic treatment. Even accepting the submission that objectively her condition had not been sufficiently serious to cause her to seek medical treatment over so many years, it appears by definition to have done so by the time she went to see Dr  Marshman  in August 2006.
  4. This aspect of the case propounded by Ms Morocz suggests that surgeons are bound to refuse a procedure if the clinical assessment of the patient suggests that it is “not warranted”, whatever that may mean in a particular situation. Ms Morocz complains that Dr  Marshman  did not examine her palms to determine whether or not they were sufficiently sweaty to indicate the need for intervention. Presumably Dr  Marshman ’s obligation was to tell Ms Morocz that she could not have the surgery if her palms on clinical examination at that time, and regardless of her history, appeared then not to warrant it. That complaint misconceives the surgeon’s obligation in my view. Dr  Marshman  has said that Ms Morocz would not permit him to examine her hands and that in effect that he relied upon her to tell him about the extent and degree of her sweaty palms and about the effect of that condition upon her. In my opinion he was entitled to do so. Provided that he properly and adequately informed Ms Morocz of the significant risks and side effects of the surgery, and that she was then able to provide her consent to the surgery in a fully informed way, Dr  Marshman  was perfectly entitled to decide whether or not to perform it. A different view would mean that purely elective cosmetic procedures with potentially significant and life threatening risks could not be performed if a candidate’s reason for surgery could not also be justified or supported on purely medical or clinical grounds. 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.
  5. Counsel for Ms Morocz posited the following example or analogy as supportive of the submission that in a proper case a surgeon may have a duty not only to warn against surgery where the seriousness of the condition does not warrant the operation but actively to refuse to perform it. He described the case of a patient seeking relief from the pain and discomfort of an ingrown toenail by undergoing an amputation of the leg. It was submitted that in such a case the doctor would be liable for performing such an operation even if he or she properly and adequately warned of every conceivable risk and side effect because of a breach of the duty to advise the patient to try less risky or less debilitating therapies before amputation.
  6. In my opinion that is a false analogy. That is for at least two reasons. First, the amputation of the leg is not a collateral risk or side effect, but the known result and intended object, of the operation. Amputation of the leg is its central purpose. Its equivalent in this case would be the amputation of Ms Morocz’ hands to cure her sweaty palms. By contrast, the performance of a bilateral endoscopic thoracic sympathectomy may be accompanied by the realisation or manifestation of none of its known risks or side effects. Secondly, a fully informed competent adult is perfectly entitled to decide to have his or her leg amputated for any reason or indeed none at all. The moral or ethical outrage generated by such a decision should not be permitted to elide what is ultimately a non-medical matter of individual choice. Gender reassignment surgery probably falls into the same category.
  7. In my view Dr  Marshman  was not obliged to counsel or advise Ms Morocz, independently of or in addition to his duty to warn her of the known risks and side effects of a bilateral endoscopic sympathectomy, that she should not undergo the procedure at all or, on another formulation of her case, that the procedure was not warranted having regard to the (lack of) severity of her symptoms. The doctor’s duty is to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. This duty is obviously a duty to avoid exposing a person to a risk of injury which she would otherwise have avoided, but, as indicated in Montgomery at [82], “it is also the counterpart of the patient's entitlement [my emphasis] to decide whether or not to incur that risk”.
  8. Ms Morocz next complains, but in a related sense, that she should have been advised to trial conservative treatment before considering or consenting to surgical intervention. As already discussed, Ms Morocz had indicated that she had trialled at least one conservative measure without success and told Dr  Marshman  that the condition had also affected her mother. Dr  Marshman  provided Ms Morocz with a brochure that informed her to consider surgery, in effect, as a last resort. I have already indicated that I have no doubt that Ms Morocz read that brochure.
  9. Dr  Marshman  was cross-examined about the offer of conservative therapies in the following terms:

“Q. Would you agree that surgery for palmar hyperhidrosis is usually offered only when conservative therapies have been trialled?

A. Most people have trialled conservative therapies. I don't see a need to use conservative therapies. They invariably fail.

Q. That's what you told Ms Morocz, correct?

A. Yes.

...

Q. My question is this procedure is usually only offered when conservative treatment has failed.

A. In my experience conservative treatment fails.

HIS HONOUR: I am sorry, I did not hear you.

A. In my experience conservative treatment fails.

Q. No, I do not think that was the question. The question was is surgery for this condition not only offered or usually only offered if conservative treatment has failed?

A. No, that's not the case.

ANDERSON: Would you accept that as a thoracic surgeon most patients you see for this condition have usually undergone conservative therapy before coming to you?

A. Yes, most people have tried something.”

  1. Apart from the terms of the brochure it seems clear that Dr  Marshman  did not literally advise Ms Morocz to consider alternative treatments or therapies. Ms Morocz criticises Dr  Marshman  in this context by saying that even though he referred to Botox injections he did so in a way that emphasised that they were expensive, that they were very painful and had to be repeated every couple of months, rather than suggesting that the treatment should be tried. Similarly, Ms Morocz contends that Dr  Marshman  should have suggested a trial of systemic medication rather than indicating that it can become ineffective due to increased tolerance. Dr  Marshman  should also on this analysis not have said that none of the other treatments was as effective as a sympathectomy, which would cure the problem and with minimal side effects.
  2. However, some context needs to be given to Dr  Marshman ’s alleged failure to suggest alternatives to surgery. Ms Morocz presented as a patient with a long history of distressing sweaty palms. She recounted in direct response to Dr  Marshman ’s questioning that she had tried alternative treatments in the past. Although limited to alcohol wipes in her adolescence, these had proved both ineffective and unpleasant and had long been discarded and never retried.
  3. As the evidence in this case reveals, no conservative treatments existed that offered a permanent solution to the problem. Botox injections were expensive and temporary, as well as being extremely painful. Topical applications were either unsuccessful on the palms, as opposed to underarm use, and in addition had both dermatological side effects as well as leaving the palms in a condition not significantly different from the problem being treated. No medications were available for the specific treatment of sweaty palms.
  4. In these circumstances the allegation that Dr  Marshman  failed to encourage Ms Morocz to some readily available, highly effective, inexpensive, painless and permanent solution to her presenting symptoms is frail in the extreme. It is obvious to the point of demonstration that Dr  Marshman  assessed the conservative treatment route in the light of Ms Morocz’ history and presentation at the time. That significantly included the fact that Ms Morocz had lived with the problem for many years, was well instructed from her own inquiries about the treatment of the complaint, was patently aware of the conservative options and was finally seeking assistance from him in his capacity as a surgeon. If a meaningful assessment of this allegation is to be made, it should occur in a realistic context that includes a proper consideration of these matters. Dr  Marshman  was entitled to take into account Ms Morocz’ apprehended capacity to understand the information that he was giving her: see Rogers v Whitaker at 490.
  5. Having regard to these considerations, as well as the fact that Ms Morocz was provided with a brochure that specifically cautioned that non-invasive medical forms of therapy should be tried before surgery, and that it was only when these have proved to be unsuccessful or impractical for long-term use that a surgical procedure should be contemplated, I am not satisfied that Dr  Marshman  failed to advise Ms Morocz about such matters in an appropriate manner.
  6. I find that Dr  Marshman  was not obliged to insist or to require that Ms Morocz 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.
  7. The remaining specifically pleaded allegations are to be found in paragraphs 6(k) to 6(q) inclusive of the amended statement of claim.
  8. It is clear that Dr  Marshman  did not advise Ms Morocz that there was no unbiased review of the safety or potential side effects of elective sympathectomy and their potential severity and did not advise her of the existence of systematic reviews warning of serious side effects and complications. There is some evidence to suggest that no such material existed, but resolution of that contest is both impractical and more importantly unnecessary.
  9. The scope and content of a particular duty to warn will vary with the circumstances of each case. It may therefore be incautious to propound generalisations about whether or not in some situations a surgeon ought in consultation with the patient to examine the competing medical literature that informs the risks or side effects in question and the probability or likelihood of their occurrence. Limited only to the present case, I have considerable difficulty with the proposition that Dr  Marshman  should have done so. The fact that bilateral endoscopic thoracic sympathectomy was arguably a controversial procedure is no more or less than a reflection of differing views about the competition between its risks or side effects on the one hand and the chances of successfully resolving palmar hyperhidrosis on the other hand. Provided Dr  Marshman ’s assessment and description of the risks and side effects was accurate, he was not in my opinion obliged to verify them for Ms Morocz or to provide her with material or references to permit her to do so. In this respect it is pertinent to observe that Ms Morocz does not contend that Dr  Marshman  was not entitled to hold or to express any of the views about the operation about which she agrees he warned her or about which she contends he should have warned her, independently of her complaints that he did not communicate them adequately or at all.
  10. I am not satisfied that Dr  Marshman  should have advised Ms Morocz 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.
  11. I find that Dr  Marshman  was not obliged to advise Ms Morocz 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.
  12. It is less clear whether or not Dr  Marshman  failed to advise Ms Morocz of the basic neurobiology and physiology affected by sympathectomy and the relationship of the sympathetic nervous system to the cardio-vascular, emotional, cognitive and sexual functions. Whatever that collocation of factors is intended to include, Dr  Marshman  did give Ms Morocz an explanation of the way in which the sympathetic nervous system functioned and the fact that it was often overactive in people with hyperhidrosis. He also explained that a division of the nerve concerned would interrupt that system in part so that the nerve ceases to send signals and stimulation to the sweat glands and the sweating stops. Dr  Marshman  did not provide an explanation of the type that Ms Morocz complains he should have provided. In particular, Dr  Marshman  made no reference to emotional, cognitive or sexual functions at all. He did not refer to cardio-vascular function as such, apart from the specific and limited reference to altered cardiac rhythms contained in the brochure.
  13. It is not at all clear to me what Dr  Marshman  should allegedly have done or what matters he allegedly should have explained beyond these things to which he actually referred. This case has involved a relatively explicit and detailed analysis of the mechanics and effect upon a surgical patient of a bilateral endoscopic thoracic sympathectomy at levels of quite sophisticated medical inquiry. If Ms Morocz contends that Dr  Marshman  was obliged in fulfilment of his duty to warn to descend into such detail in his consultation with her then I reject the allegation. If the suggestion is limited to the proposition that he was obliged to review only basic physiology and neurobiology in satisfaction of his obligation then I consider that he did so.
  14. Dr  Marshman  did not offer Ms Morocz the option of staged unilateral procedures or specifically indicate that the risks associated with a sympathectomy might be reduced if performed in that way. Dr  Marshman  was not cross-examined about that topic although he was asked about it by me:

“Q. Is the risk or likelihood of any known complications of the procedure higher if performed bilaterally as opposed to unilaterally, or is there no difference?

A. I don't know. It is routinely performed bilaterally. I don't have any experience with it being performed unilaterally other than in patients who have had tumours of the sympathetic chain..(not transcribable)..or ganglia..(not transcribable)..which I've resected and have necessarily resected the sympathetic chain, including the stellate ganglion and none of those patients have suffered any of these side effects other than Horner's syndrome.”

  1. The matter was not pursued further.
  2. I find that Dr  Marshman  was not obliged to offer Ms Morocz the option of staged unilateral procedures or specifically to indicate that the risks associated with a sympathectomy might be reduced if performed in that way.
  3. Nor did Dr  Marshman  inform Ms Morocz about his particular surgical history or experience with the performance of bilateral endoscopic thoracic sympathectomies. It follows that Dr  Marshman  did not discuss complications with Ms Morocz that had been experienced by patients upon whom that procedure had been performed by him.
  4. 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.
  5. I find that Dr  Marshman  was not obliged to inform Ms Morocz about his particular surgical history or experience with the performance of bilateral endoscopic thoracic sympathectomies or to discuss complications with Ms Morocz that had been experienced by patients upon whom that procedure had been performed by him.

The “cure” issue

  1. Ms Morocz complains that Dr  Marshman  told her that the procedure was a cure for hyperhidrosis and that the effect of the surgery is that once the sympathetic chain is cut that cure is permanent. This complaint had been adverted to elsewhere in these reasons. It is to some extent complicated by more semantic and definitional problems.
  2. It will be apparent that there is an immediate tension between talk of a cure on the one hand and percentage rates of success on the other hand. If a procedure is described as a cure, that can only meaningfully be a reference to the technical success of the operation. For present purposes that must be a reference to the fact that if the relevant sympathetic nerve is divided successfully, the palmar hyperhidrosis will be alleviated. References to it being permanent are merely references to the fact that the spontaneous regeneration of the nerve will not occur so that a successful division of the nerve will continue to be effective. In colloquial or vernacular terms, the operation will only give a permanent cure of the condition if it is performed successfully and the relevant sympathetic nerve is divided.
  3. It is therefore inaccurate to speak in terms of permanent or temporary cures. There is a chance that the operation will not be successful. That is something of which there would appear to be less than approximately a five percent chance. For example, according to Dr  Marshman ’s usual practice, he would have advised that “there is a 98 percent success rate in achieving dry hands after the procedure.” That statement is another way of saying that the procedure fails to result in dry hands in approximately 2 percent of cases. In such cases, there will have been no cure and clearly enough no permanent cure.
  4. Dr  Marshman  did not provide Ms Morocz with details of why the procedure did not succeed in this small percentage of cases. Although it is somewhat circular and trite, Dr  Marshman  was effectively saying that he could offer a permanent cure for the condition by performing a sympathectomy, with the exception of a small percentage of cases in which the operation could be expected to fail. In my view, Dr  Marshman ’s references to the operation amounting to a cure, or to the cure being permanent, have to be understood in this context. It is significant in my opinion that Ms Morocz does not contend or allege that Dr  Marshman  offered her a guarantee that the operation would be successful, or in other words that the operation was always a permanent cure for the condition. Dr  Marshman  specifically denied ever using the word “cure” in his preoperative consultation with Ms Morocz.

Intercostal neuralgia

  1. As I have already noted, neither intercostal neuralgia nor neuropathic pain was pleaded by Ms Morocz as something of which she should have been warned. Despite that fact, reference to nerve pain can be found in her evidence in these proceedings. For example, Ms Morocz gave the following evidence when cross-examined:

“Q. I also want to suggest to you that he said to you there may be nerve irritation as a result of the manner in which the surgery was performed?

A. In my recollection, what he said was that there might be injury to some of the nerves and that can cause pain.

...

Q. And if you read the first paragraph underneath, ‘What are the risks of surgery?’, there's an explanation that, ‘Because the telescope and instruments pass between the ribs, it's possible to damage the nerve which runs beneath each rib which can potentially lead to bleeding or inflammation of the nerve with chronic irritational pain’, and you were prepared, after reading that paragraph, to accept that risk for the surgery?

A. I did understand that there might be pain, what this pain is wasn't qualified.

...

Q. And he also said local pain can occur at the site of operation and some patients can experience intercostal neuralgia?

A. He said that at the site of the cut, where the instruments are inserted, the nerve can get damaged and that will cause pain, yes.”

  1. Dr  Marshman  would appear to have had no independent recollection of discussing this topic with Ms Morocz when he gave his statement of evidence as directed by me. He indicated in that statement only that it was his usual practice to discuss it with patients. However, he was cross-examined upon this topic, not by reference to his usual practice but apparently upon the basis that he had an actual recollection concerning it. He was re-examined about it as well. The relevant references are as follows:

“ANDERSON: And were you aware that neuralgia is a known complication of the procedure?

A. Intercostal neuralgia.

Q. Neuralgia generally.

A. I'm not - you'll have to be more specific. Neuralgia generally is - just means pain in the nerves.

Q. Exactly. So are you saying that you were aware that neuralgia, intercostal neuralgia was known to occur after the procedure?

A. Yes.

...

Q. You didn't warn her about intercostal neuralgia, did you?

A. Yes, I did warn her about intercostal neuralgia.

Q. I suggest that you did not warn her about neuralgia in any form.

A. No, I did warn her.

Q. You certainly didn't explain, did you, that neuralgia can cause persistent and disabling pain.

A. I would have - I warned her about intercostal neuralgia.

Q. You did not warn her that neuralgia can cause unremitting and debilitating pain, did you?

A. No.

...

BURKE: You gave evidence that you did warn the plaintiff about intercostal neuralgia and you were asked a question in relation to warning the plaintiff of neuralgia. What do you say is the difference between intercostal neuralgia and neuralgia itself?

A. Neuralgia simply describes any pain from any nerve in general terms. Intercostal neuralgia is arising from the intercostal nerve related to damage or bruising or irritation of the nerve at the site of the surgical scar.”

  1. Dr  Marshman s 4 August 2006 letter is quite important on this aspect of the case. It specifically refers to intercostal neuralgia as one of the risks of which Ms Morocz was “aware”. I take from that that the topic was at least raised in the course of the conversation, either by Dr  Marshman  or Ms Morocz, but in circumstances that led Dr  Marshman  to recall and to record it long before these proceedings were contemplated or its possible significance as a discrete matter had emerged.
  2. I find that Ms Morocz was properly and adequately warned of the possibility that she may suffer from intercostal neuralgia.

The Swedish experience

  1. Little if any attention was given to this issue at the trial. If the operation was banned in Sweden in 2003, Dr  Marshman  did not mention it to Ms Morocz. He was not asked about it at the consultation. He was asked about it in cross-examination as follows:

“Q. Are you aware that it was banned in Sweden in 2003?

A. I am aware of that.

Q. Yes. Were you aware of that when you saw Ms Morocz?

A. No.”

  1. It was never suggested to Dr  Marshman  that he should have known about this matter in February 2007. The issue was not further pursued.
  2. I find that Dr  Marshman  was not obliged to advise Ms Morocz that endoscopic thoracic sympathectomy had been banned in Sweden since 2003.

Conclusion

  1. It follows that in my opinion Ms Morocz has not established that Dr  Marshman  failed, in breach of his duty, to warn her of any material risk or side effect known or understood in 2007 to be an inherent risk or side effect of the bilateral endoscopic thoracic sympathectomy that he performed on 7 February 2007. For abundant caution I also observe that I am not satisfied that Dr  Marshman  failed, in breach of his duty, to warn her of any other risk or side effect of that procedure that Ms Morocz maintains he was in 2007 obliged to warn her about.

Causation

  1. In these circumstances, Ms Morocz underwent the procedure as the result of an informed decision to do so. Her decision was therefore not causally related to any breach of duty on the part of Dr  Marshman .
  2. That result is a combination of at least two factors. First, that Dr  Marshman  warned Ms Morocz of all matters that the experts indicated she should have been warned about and that she proceeded to have the operation knowing those things. Secondly, that any other matters that Ms Morocz has established, and that I have found, Dr  Marshman  failed to warn her about were in my opinion not matters that he was required to mention.

Alternative analysis

  1. The following question remains outstanding: would any of those other matters that Ms Morocz complains, and that I have found, Dr  Marshman  did not warn her about, have led or caused her to make a different decision about whether or not to have the operation? That is a hypothetical question of fact (s 5D(1)(a)) involving my assessment of what Ms Morocz would have done if she had possessed the additional information or any of it. It requires consideration by me in case any of my findings that they were not matters that he was required to mention were found to be wrong.
  2. There are ten matters in that category:
  3. Ms Morocz did not give evidence about what she would have done if she had been told about these extra things or any of them. That is unexceptionable having regard to the terms of s 5D(3)(b).
  4. There is no evidence before me concerning Dr  Marshman ’s surgical history performing this operation. I am therefore unable to comment on that factor or whether knowledge of it would have altered what Ms Morocz did.
  5. In assessing the remaining factors in this context I am proceeding upon the basis that Ms Morocz’ post-operative condition and experiences, about which there is a wealth of evidence before me, should not be taken into account. The matter is to be determined subjectively in the light of all the relevant circumstances: s 5D(3)(a). Those circumstances are those in existence as at 7 February 2007. However, I take the position to be that I am entitled to take into account my observations and impressions of Ms Morocz, after having seen and heard her in the witness box, and after having considered professional expressions of opinion about her, in forming my conclusions about what she would have done in 2007. It is not a question of what Ms Morocz knows now but did not know then.
  6. One of my impressions of Ms Morocz is that she is quite single minded. That is not intended to be a pejorative comment but is an observation of her combined intelligence and desire for information. An example of this can be found in her own account of the preoperative consultation in which she challenged or confronted Dr  Marshman  with things she had independently discovered about the operation they were discussing. Dr  Marshman  himself was moved to comment about this in his own evidence.
  7. 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 Ms Morocz to decline to undergo the surgical procedure in question. The principal reason for forming that view is that Ms Morocz was not deterred by the description of the operation she actually received from Dr  Marshman  or by his advice to her about the risks and side effects that were associated with it. Specifically, having been prepared to undergo the procedure knowing that there was a small chance that it might not work, that there was a significant chance that she would experience compensatory hyperhidrosis, that there was a risk of surgical misadventure causing damage to local structures such as arteries possibly requiring further surgery, that there was a risk of sustaining a pneumothorax and intercostal neuralgia, as well as risks associated with anaesthesia and infection, I do not consider that the additional matters, if known, would have made any difference.
  8. Decreased innervation of the heart is a term that describes one possible cardiac consequence of surgically dividing a sympathetic nerve. It is not a description of a painful, disabling, pathological or distressing complication of a sympathectomy so much as the notation of an alteration of the surgical candidate’s preoperative constitutional or individual innervation of the heart. It can for present purposes be described as a collateral consequence of the surgical division of the nerve, which was the aim of the surgery. It is in functional terms not a material matter but is rather an anodyne reference to a possible result that would in all likelihood have evoked an equally anodyne response if mentioned.
  9. Bradycardia is a term used to describe a slow heart rate. It is not a pathological condition as such although it may be a symptom or sign of some pathology. It may equally be a sign of cardiac fitness. Standing alone, bradycardia is no more or less than a description or an observation of a slow or slowing heart rate. It would not in my view have inclined or convinced Ms Morocz to refuse surgery.
  10. I take intolerance to exercise to be a description of extreme and premature breathlessness upon exertion. The reference to this condition was not enhanced or qualified in any way by a suggestion of the likelihood of this condition presenting itself as an operative complication. If warned that this condition was a certainty or very highly likely to occur, I consider that Ms Morocz would have declined surgery. If unlikely or extremely rare, I do not think it would have made any difference.
  11. The reference to impairment of emotional responses is difficult to confine. Presumably Ms Morocz has generated this description by reference to her currently claimed loss of caution in dangerous situations or disinhibition when driving. If Ms Morocz had been warned that she may experience the small constellation of symptoms that she appears to collect under this heading, I am satisfied that she would nonetheless have still been happy to proceed with her surgery.
  12. A warning about a high risk of disabling headaches would probably have deterred Ms Morocz from agreeing to the procedure, but a slight risk would not.
  13. A warning of a significant risk of developing anxiety and depression would in my opinion have deterred Ms Morocz from undergoing the procedure.
  14. Advice about the alleged absence of an unbiased study or the existence of systematic reviews warning about safety concerns, or about alleged benefits of a staged unilateral approach, or even the provision of details about Dr  Marshman ’s surgical history would not in my opinion, either alone or in combination, have made any difference to Ms Morocz’ decision to have the operation.
  15. Knowledge that the proposed operation had been banned in Sweden since 2003 would have caused Ms Morocz to pause in my opinion. This is a matter that I would have expected her to know about, especially given her apparently wide knowledge about the procedure when she first consulted Dr  Marshman . Ms Morocz was not cross-examined about that and I have no material permitting me to decide the issue. However, the operation was legal and regularly performed in Australia and presumably several other countries. Given the generally conservative Australian approach to medical licensing and accreditation, I consider that Ms Morocz would have been persuasively and favourably influenced by the fact that the procedure was legal in Australia, and would not have been ultimately deterred by the Swedish approach. If there are further or other factors that inform the Swedish ban upon the operation, I have not been provided with them.

Damages

  1. The result of my decision on the question of breach of duty is that none of the conditions from which Ms Morocz alleges that she now suffers post-operatively was caused by Dr  Marshman ’s negligence. I have concluded that Dr  Marshman  was not at fault so that no negligence on his part can be identified as being a necessary condition of the occurrence of any harm suffered by Ms Morocz.
  2. Ms Morocz has accordingly failed to establish that she is entitled to damages from Dr  Marshman . However, against the contingency that my conclusion in that respect were wrong, I will proceed to assess damages upon the assumption that Ms Morocz had succeeded.

Non-economic loss

  1. Ms Morocz was born in 1968 and is now 45 years of age. She finished school in 1986. She married in 1999 but separated in 2003 and divorced in 2010. She is currently single. Ms Morocz is currently unemployed and in receipt of a disability support pension.
  2. Ms Morocz described her life and symptoms since the operation in some detail in her first statement at paragraphs [146] – [156] as follows:

Difficulties with the Film Project

[146] After the surgery I struggled to get back to where I was before, physically, mentally and emotionally. Apart from the physical restrictions (dizziness, pain, fatigue, reduced capacity, migraines) I struggled with regaining my ‘old self’. There was a constant reminder that my reactions are different, that I do not experience things as I used to and that I am not the same person I was. I had problems with simple decision making, I had problems with memory and this became painfully evident as I was working on the script. I colour-coded the script so that I would have visual cues that would help me along the way, but these did not prevent the same scenes being repeated within the story (it was multi-layered) a few pages later. Editing the ‘teaser’ became excruciating, because I was not able to ‘hold’ in my mind the scenes longer than 40-50 seconds, after which I lost the ‘thread’. Editing requires being able to be aware of every single image and how it works in its context. It requires attention to every small detail and at the same time being able to stand at a ‘distance’ and see how the whole meshes together. My attention dropping to about 40 seconds, it became excruciating to try to edit the material. It soon became evident that it required the involvement of the producer who got more involved in the editing process. Yet, I still thought and hoped that somehow my old self would return and I would regain my faculties.

[147] The AFC continued to fund the project, and was very supportive. There was talk of Australian-French co-production and a potential for cinema release, and ‘Sundance’. Clearly, I believed that the story resonated with many people and many were invested in making it. I thought that if I persisted, and worked as hard as I could, I could make up for some of the deficiencies that I noticed. The story was established, formed enough, so that if I followed its lead, I would make it. However, there were signs along the way that indicated otherwise. The work on the script and difficulties along the editing process was one. The other one was that I seemed to swing between emotional numbness, lack of interest and the inability to engage with the ideas that I found so fascinating and exhilarating before and extremes of anxiety and inability to regulate emotions (mostly rage that would bubble at the slightest trigger).

[148] There were several instances when direction and concepts with the producer were discussed when we had differing views. Instead of asserting myself and reasoning why it made sense to me to go in a certain direction, I was close to unable to control the inner rage and emotional turmoil that I was experiencing, so I shut down because I did not know how else to manage this unmanageable mix of rage. I had no idea what was happening to me, and watched in astonishment as these floods of rage overtook reason, and I realised that I was unable to work through this and my old self was NOT coming back, that this is not something that was going to ‘settle’. I was very attached to the film project. It carried all the ideas that I found worth pursuing, and I invested myself in developing and letting the story grow. I found it excruciating to have to let it go. It represented my old life, my previous ‘incarnation’ as an artist, my old life’s aspirations, goals and direction. Letting it go meant that I had to let go of who I was and that is like mourning a death of oneself. A life without purpose, a life without meaning, goals and aspirations.

[149] I thought that if I handed the project over to the producer, who loved the story and really wanted to make it, then at least part of me would remain (alive). I handed over the project to him, thinking that he would go on and finish it. However he said that it is my story and it would not be the same without my involvement and input. Having to let my work go like that was one of the hardest things I ever had to do.

Psychological and Emotional Problems

[150] The burst of anxiety was like a combustion engine that came on and made even thinking impossible. I encountered this during an interview I was doing in France where I was simply not able to follow the conversation, and my energy was consumed with trying to control the surges of anxiety, sweating and the prickling sensation that comes on with this emotional/mental state. It is an all-encompassing state that appears to shut my mental faculties down and come on in surges. The other warning signs were clearly evident in the setting of trying to make the film. The producer – while in France – asked me a simple question about when to conduct one interview (there were several options, and others that were already booked) but I was not able to compute, I was not able to make a decision. I just froze.

[151] I have noticed that I have problems with impulse control (while driving, or when talking to people). Ideas (urges) that popped into my head were almost enacted. I never before was aware that there are impulses that need to be retrained, and was terrified being in company of people that I will enact these urges (often sexual in nature). I saw it as some kind of disinhibition that generated a lot of anxiety because I was not sure if I could catch the urge before enacting it in public.

[152] I also noticed that as I was watching television, and sometimes when talking to someone who was facially expressive, I was mimicking the facial expressions of these people; something I have seen before in small children or people who are mentally retarded. I was afraid that this would occur in company when someone was telling me an engaging story. There are/were some of the changes that occurred after the surgery: not reacting to unexpected situations when driving, or when I almost hit someone not having ANY kind of reaction but remaining calm and driving without swerving, without as much as increasing heart rate or getting anxious over what has occurred. I remember driving away, while watching the person in the rear mirror wildly gesticulating and screaming that not having any reaction is not normal. That I am acting, behaving as a robot. That this is not NORMAL to not feel, not react. I cannot engage emotionally with anything and anybody. I feel dead. This deadness encompasses everything in my life; my relationships with others, my work and every aspect of my life. I am depressed most days.

[153] I cannot picture being able to have a normal relationship after this. I cannot read a book because I am uninterested, not engaged with it and I do not remember what I read. I keep rereading passages from books that normally would have been engaging and I would find it difficult to put down. Now, I do not read, because there is this overarching lack of interest and indifference.

[154] I severed contact with most people and live a very isolated, withdrawn life. I am well aware that the ‘shift’ or the ‘adjustment’ in my personality, how I relate and interact with others remains a continuous presence. Even withdrawn, I find managing the level of anxiety difficult. It affects my sleep and overall health, creating a vicious cycle.

Chronic Pain and Reappearance of Hyperhidrosis

[155] The chronic pain, while fluctuating, affects every aspect of my life. I have nerve pain and joint pain throughout. Severe headaches can last for 3 days, and while the medication was about 50% effective initially, it no longer is. A number of other symptoms flare up occasionally, such as numbness on one side of the body, tingling and burning.

[156] Despite the sympathectomy procedure the hyperhidrosis slightly reappeared in about 6 months and the hyperhidrosis from which I previously suffered, and at times more severe than prior to the surgery, returned fully on the hands in about a year.”

  1. Ms Morocz has experienced a significant alteration and disruption to all aspects of her life since her operation. Although her symptoms include physical pain and discomfort, noticed particularly in the immediate post-operative period, these have since been joined by the emotional and psychological symptoms that Ms Morocz has described. None of these was present before the operation.
  2. Counsel for Ms Morocz contended that Dr  Marshman ’s liability extended to the psychological and psychiatric injuries sustained by her as consequences of the procedure as it made a material contribution to their occurrence. He referred to Nader v UTA [1985] 2 NSWLR 501. He also submitted that it was for Dr  Marshman  to prove that the surgery and its sequelae played no part in the development of Ms Morocz’ psychological and psychiatric conditions: see Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 at [2]; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at [4].
  3. I consider that all of the post-operative symptoms of which Ms Morocz complains are a direct and foreseeable consequence of her surgery. That is so even though there is no objectively assessable or verifiable physiological cause for much of them. I accept the psychiatric and psychological opinion that suggests that Ms Morocz has had what amounts to a pathological reaction to the manifestation of painful and distressing side effects of the operation, even though she was properly and adequately forewarned by Dr  Marshman . The surgery was the legal “cause” of the symptoms because it materially contributed to the onset and continuation of Ms Morocz’ condition: see Nader v UTA at 530-531.
  4. Counsel for Ms Morocz contended that she represented 55 percent of a most extreme case. I consider that this is an accurate assessment.

Past economic loss

  1. For the financial years ending 2006 and 2007 Ms Morocz had a taxable income of $9,390 and $8,854 respectively. She was therefore earning approximately $180 net per week in 2006 and slightly less than that in the following year. Her gross earnings from her contract cleaning business were $26,666 in 2006 compared to $26,192 for the following year. In the years ending 30 June 2008, 2009 and 2010 her net taxable income was $11,128, $16,160 and $5,411 respectively or $214, $310 and $104 net per week. Gross receipts for Ms Morocz’ business activities in those years were $20,864, $16,160 and $14,976. There are no corresponding gross or net figures for the years since 2010 to date. It is not clear to me whether this is because Ms Morocz earned no income in these years or simply does not have tax returns recording the relevant information.
  2. Ms Morocz claims past economic loss at the rate of net average weekly earnings of $700. The evidence does not support the contention that Ms Morocz was earning at that rate before she was injured. Gross average weekly earnings for females in New South Wales as at February 2007 were $733.90. By the end of the 2014 financial year this had increased to $906. When working in her chosen activities before the operation, Ms Morocz was not earning in excess of $200 net per week. Whatever potential or unexploited capacities based on training and experience that Ms Morocz might have had, they had not materialised in a way that by 2007 had produced a corresponding increase in her income. That is notwithstanding that she was almost 40 years of age by then.
  3. Doing the best I can it seems to me that Ms Morocz may have sustained an interference with her earning capacity causing a loss of income since February 2007 at an average rate of approximately $250 net per week. Even though her loss was not immediately apparent, she became progressively less able to work as the years went by. Her hypothetical losses in the later years since 2007 would have been greater than the losses at the start, when she was still earning. That capacity appears now to have gone completely. This is because it seems to me that her ability to function normally, and to attend to income producing tasks either as an employee or as a self-employed person, has been fundamentally compromised.
  4. Past economic loss at the net weekly rate of $250 since February 2007 until now produces a total sum of $105,000 for past economic loss in round figures.

Future economic loss

  1. Ms Morocz continues to suffer from a diminution in her pre-injury earning capacity. However, if uninjured today her net weekly net loss would not have been $200 but probably closer to $350. That sum calculated for the next 18 years at a multiplier of 625 less 15 percent is $185,937.50.

Past and future superannuation

  1. These sums are arithmetically calculable by reference to past and future economic loss and can be produced by reference to the applicable rates if the need arises. Some consideration may need to be given in that respect to the fact that Ms Morocz has always relevantly been self-employed.

Past out of pocket expenses

  1. There was no agreement about these sums. I was originally provided with a schedule of so-called medical and pharmaceutical expenses totalling $41,665. That sum was ultimately reduced to $34,500. Ms Morocz gave no evidence about any of the items of services, treatment or pharmaceutical product to which the schedule refers. The latter figure was made up of the sum of $8,230 for which receipts are produced plus a sum of $26,274.75 described as a Medicare repayment. The later undissected figure may or may not relate to the consequences of the impugned conduct of Dr  Marshman .
  2. This aspect of Ms Morocz’ claim cannot be assessed without further evidence or argument.

Future (anticipated) out of pocket expenses

  1. There is no evidence of the need for any specifically anticipated discrete or reoccurring hospital, medical or pharmaceutical expenses. This aspect of Ms Morocz’ claim also cannot be assessed without further evidence or argument.

Conclusions and orders

  1. It follows that Ms Morocz has failed to establish that Dr  Marshman  is liable to her in damages for negligently failing to warn her of the known risks or side effects of undergoing a bilateral endoscopic thoracic sympathectomy. In these circumstances, the following orders should be made:

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