Morocz v Marshman [2015] NSWSC 325

Morocz v Marshman [2015] NSWSC 325

The defendant did not breach his duty to warn because he adequately warned the plaintiff of all material risks and side effects known in 2007 associated with bilateral endoscopic thoracic sympathectomy, both orally and via written information. Additional risks alleged by the plaintiff were not material in law or widely recognized risks at the time, nor required disclosure. Accordingly, the plaintiff failed to establish breach and causation; her injuries were not caused by any breach of duty in relation to warnings.

Parties
Plaintiff: Maria Morocz; Defendant: Dr David Marshman
Jurisdiction
Australia
Judgment Date
17 April 2015
Procedural Posture
Professional Negligence (medical) / Principal Judgment
Outcome
Verdict for the defendant. Plaintiff to pay the defendant's costs.
Legal Topics
Informed Consent, Duty to Warn, Medical Negligence, Causation, Civil Liability Act 2002 (nsw), Endoscopic Thoracic Sympathectomy, Compensatory Hyperhidrosis
Medical Law Tort Law Professional Negligence Informed Consent Duty to Warn Medical Negligence Causation Civil Liability Act 2002 (nsw) +2 more

Case Brief

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Parties

Maria Morocz

Plaintiff

Dr David Marshman

Defendant

Procedural Posture

Professional Negligence (medical) / Principal Judgment

Legal Issues

  1. 1 Whether the defendant failed to properly or adequately warn the plaintiff of material risks and side effects of bilateral endoscopic thoracic sympathectomy in breach of his duty of care
  2. 2 Whether any failure to warn caused the plaintiff's injury and losses

Ratio Decidendi

The defendant did not breach his duty to warn because he adequately warned the plaintiff of all material risks and side effects known in 2007 associated with bilateral endoscopic thoracic sympathectomy, both orally and via written information. Additional risks alleged by the plaintiff were not material in law or widely recognized risks at the time, nor required disclosure. Accordingly, the plaintiff failed to establish breach and causation; her injuries were not caused by any breach of duty in relation to warnings.

Court Disposition

Verdict for the defendant. Plaintiff to pay the defendant's costs.

Orders

  • Verdict for the defendant.
  • Order the plaintiff to pay the defendant's costs.