Assessment 3: Written Assignment
It has been well understood in Australia for nearly 25 years that a there is a duty to warn extends to ‘material risks’by health care practitioners. Material risks are those that a reasonable person in the patient’s position would likely attach significance to, or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would attach significance to it (Rogers v Whitaker [1992] HCA 58; Wallace v Kam [2013] HCA 19). A more recent case Moracz v Marshman 2016 NSWCA 202 (sometimes called “The Sweaty Palms Case” re-examined the principle of material risk and duty to warn.
Moracz v Marshman (The Sweaty Palms Case) is an interesting case in the NSW Supreme Court that explored the threshold necessary to successfully establish failure to warn and was a re-visitation of the duty of medical practitioners and other health professionals to warn patients of the material risk of a proposed procedure or treatment. The plaintiff (Ms Moracz) was unsuccessful in the court of original jurisdiction which was the NSW Supreme Court and later appealed to the NSW Court of Appeal. Dr Marshman was a respondent to this appeal. Read Moracz v Marshman 2016 NSWCA 202 by clicking on the hyperlink
The Task
Using short answers you must answer EACH of the questions and any subsections of questions listed below. Please note there is a word limit attached to each of these questions which must be observed.
1.In reading the law report on the Moracz v Marshman case answer the following questions (500 words).
a. Discuss the facts of this case that the Court considered included the reasons for the case being brought to trial by the plaintiff and the clinical evidence presented by the defendant.
b. What was held as by the trial judge Harrison J
c.What cases were relied upon as precedent by the trial judge.
d. Describe the reasons why these cases were relied upon in the judgement.
e. On what grounds was the appeal lodged.
f. What was the outcome of the appeal and what reasons did the Appeal Judge give for his decision.
2. What are the implications for clinical practice as a result of this case and provide evidence from the literature in your answer with full citation (1000 words).
3.What are the implications for health services managers as a result of this case and provide evidence from the literature in your answer with full citation (1000 words)
Total Words Required: 2,500
