The Consent You Didn’t Truly Give: Medical Negligence and the Right to Be Warned
In 1992, the High Court of Australia decided a case that changed the law of medical negligence for every patient in the country. A woman had consulted a surgeon about operating on her right eye, which had been blind since a childhood accident. The surgeon performed the operation. Afterwards, she developed a condition called sympathetic ophthalmia — an inflammation in the operated eye that spread to her good eye, the left, which had until that point functioned normally. She lost almost all sight in both eyes.
The surgeon had not warned her of this risk. It was a one-in-14,000 chance. He had not considered it worth mentioning. The High Court found him negligent — not because the surgery itself was performed poorly, but because he had failed to warn her of a risk that she, had she known about it, would have found significant. She would not have agreed to the operation. The risk she was never told about had materialised and had taken from her the sight she still had.
This case — Rogers v Whitaker — established a principle that still governs Australian medicine today: the decision about what risks are material enough to disclose to a patient belongs to the patient, not to the doctor. It is one of the most important patient rights in Australian law, and it is one that remains poorly understood by many who have been harmed.