In the historic case Rogers v Whitaker the High Court of Australia determined that the responsibility of taking medical risks lies with the patient not the doctor. In this case the appellant, Rogers, failed to inform the respondent, Whitaker, of the risks of surgery to her right eye. As a result, Whitaker underwent the surgery and became almost completely blind in both eyes. Rogers’ failure to inform Whitaker of the risks left him liable in negligence.

Failure to Inform of Risks Left Doctor Liable In Negligence

Whitaker, who was almost totally blind in her right eye, consulted Rogers, an ophthalmic surgeon, for assistance in improving her sight. Rogers advised Whitaker that she could undergo a surgery on her right eye to improve its appearance and restore a considerable amount of sight to it. However, Rogers failed to inform Whitaker that there was a 1 in 14,000 chance of sympathetic ophthalmia occurring. Sympathetic ophthalmia is an inflammation in both eyes which can occur after trauma to one eye. It can result in total blindness. Whitaker agreed to the surgery without knowing this risk. Unfortunately, after the surgery Whitaker saw no improvement in her right eye and she development inflammation in her left eye. This led to a loss of all sight in that eye. Whitaker was left blind.

Whitaker sued Rogers in the Supreme Court of NSW. Campbell J found Rogers liable in negligence and awarded $808,564.38 in damages to Whitaker. After a failed attempt to appeal to the Court of Appeal, Rogers successfully appealed on special leave to the High Court of Australia. Whitaker needed to prove the three elements of negligence. Firstly, that Rogers owed her a duty of care. As a doctor and patient relationship, this was not in dispute. However, the second and third elements were in question. On appeal, Rogers argued that he neither breached his duty nor caused Whitaker’s injury.

Failure to Inform of Material Risks Considered Negligent

Rogers argued that The Court use the “Bolam Principle’ to resolve the issues on appeal. Essentially, the principle states that a doctor is not negligent if they act in accordance with a practice accepted as proper by a responsible medical body. However, Their Honours determined the “Bolam Principle” was inapplicable in the circumstances. Gaudron J went so far as to say that the principle had no legal basis for limiting liability unless in a medical emergency or extenuating circumstances.

Instead, Their Honours held that Rogers had a duty to warn Whitaker of all material risks in the proposed treatment. Their Honours decided that a risk is material if a reasonable person in the patient’s position, if warned of the risk, would likely consider it significant. Furthermore, if a medical practitioner knows or ought to know that a particular patient will attach significance to a risk that risk is material. This definition of material risk has been crucial in deciding more recent cases both in Australia and overseas.

Doctor Held to Have Been Negligent for Failure to Inform

According to findings at trial, Whitaker constantly asked Rogers about possible complications to the surgery. Whitaker expressed concerns for damage occurring to her left eye. On the day of surgery, Whitaker even asked for something to cover her left eye to ensure that doctors did not operated on it by mistake. Therefore, it should have been clear to Rogers that the risk of damage to Whitaker’s left eye was material. Whitaker was already blind in her right eye. Damage to her left eye was devastating.

Their Honours rejected Rogers arguments and held Rogers to have breached his duty and caused Whitaker’s injury. Rogers should have advised Whitaker of the risks of sympathetic ophthalmia occurring. Therefore, The Court dismissed the appeal, and found Rogers negligent.

Why Is This Case Still Relevant?

Rogers v Whitaker is a key case in Australian history. Almost 30 years later and this case is still relevant. The case redefined the duty a doctor owes to their patients. In 2015 it was even used to decide the UK Supreme Court case Montgomery v Lanarkshire Health Board. Essentially it has become the leading case in the Commonwealth for doctor’s failing to inform patients on risks. The case affirms that the responsibility of taking a risk rests with the patient. It is the doctor’s role to inform a patient of all material risks regardless of its statistical likelihood.

Rogers v Whitaker [1992] HCA 58

Uniformed Surgical Risk Leads to Blindness