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.
Informed consent is the process by which a patient, having been given adequate information about a proposed procedure — including its purpose, its likely benefits, its alternatives, and its material risks — agrees to proceed. Consent that is not adequately informed is not truly consent in the legal sense.
Before any significant procedure, a healthcare provider is legally required to disclose all material risks to the patient. A risk is material if a reasonable person in the patient’s position would want to know about it before deciding whether to consent to the treatment. Importantly, this standard is assessed from the patient’s perspective — not the doctor’s assessment of what is “worth mentioning.”
A failure to warn occurs when a healthcare provider proceeds with a procedure without adequately disclosing a material risk — a risk that, if disclosed, would have led a reasonable patient in the claimant’s position to decline the procedure, or to seek a second opinion, or to choose an alternative treatment. The risk then materialises, and the patient suffers harm.
These are the cases where patients say: “If I had known there was a chance this would happen, I would never have agreed to it.” Research into Australian medical negligence claims has found that in approximately 71% of informed consent cases, the primary allegation is that a complication materialised that had never been mentioned or adequately explained before the procedure. The patient was not given the information they needed to make a genuine choice.
The obligation to disclose material risks is not confined to common risks. A risk can be material even if it is statistically rare, provided it is one that a reasonable patient would want to know about. The High Court’s finding in Rogers v Whitaker involved a one-in-14,000 risk — vanishingly small in statistical terms, but significant to this particular patient because the risk was to her only functioning eye.
Factors that determine whether a risk is material include:
In most medical negligence cases, the claimant must prove that the treatment provided fell below an acceptable standard — that the doctor did something wrong in the performance of their role. In a failure to warn case, the procedure itself may have been performed perfectly. The negligence lies not in the performance of the surgery, but in the consultation that preceded it — in the failure to provide adequate information to allow the patient to make a genuine, informed choice.
This distinction creates a unique challenge. The claimant must prove two things beyond the standard medical negligence elements:
This second element — what the patient would have done had they been warned — is assessed both subjectively (what this particular patient says they would have done) and objectively (what a reasonable person in the patient’s position would have done). The standard is demanding, and failure to warn claims are more legally complex than many other forms of medical negligence. Specialist legal advice is essential.
Spinal procedures carry well-documented risks of nerve damage, including permanent changes to sensation, motor function, and in the most serious cases, paralysis. These are not common outcomes of competent spinal surgery — but they are recognised risks. A patient who was not told that a spinal procedure carried a risk of permanent neurological deficit, who would have declined the procedure or sought alternative management if they had been informed, and who then suffers precisely that outcome, may have a failure to warn claim.
Elective and cosmetic procedures present some of the clearest failure to warn scenarios. A patient seeking rhinoplasty, breast augmentation, or bariatric surgery is making a voluntary decision. The decision is driven by personal goals, not clinical necessity. The standard of information required before such a patient can give truly informed consent is high — and the obligation to explore the patient’s specific concerns and expectations is significant.
Hysterectomy, laparoscopic procedures, and other gynaecological surgeries carry risks including damage to the bladder, ureter, bowel, and surrounding structures. Patients who suffer these outcomes without having been warned that they were possible have, in many cases, the basis for a failure to warn claim.
The duty to warn is not confined to surgical procedures. Prescribing a medication with serious documented side effects — including addiction potential, bone density loss, cardiovascular risk, or teratogenic effects — without adequately informing the patient of those risks can give rise to a failure to warn claim if the harm materialises.
Where a failure to warn claim succeeds, compensation covers the harm caused by the procedure that the patient would not have undergone had they been properly informed. This may include:
The right to informed consent is, at its core, the right to make your own decisions about your own body. When a healthcare provider fails to give you the information you need to make that decision — whether through oversight, assumption, or paternalism — and you are harmed by a risk you were never told about, you have the right to seek legal redress.