Failure To Warn But Is It Medical Negligence?

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Synopsis

In the recent decision by the Supreme Court of New South Wales (the Court), in Stott v Rashid¹, Justice Fagan held that proving that a practitioner failed to warn a patient of a material risk of a procedure is only half the battle in medical negligence cases. The plaintiff must also establish, on the balance of probabilities (i.e. more likely than not), that had they been advised of the risks, they would have declined the procedure (causation issue).²

Facts

In 2012, the plaintiff (36 years old) was referred by her GP to urologist Dr Rashid for stress urinary incontinence. Following the initial consultations where the plaintiff expressed her dissatisfaction with living with the symptoms of stress urinary incontinence for more than two decades, Dr Rashid offered to implant a Tension-free Vaginal Tape sling (TVT-O sling).³ During this consultation, the plaintiff alleges that Dr Rashid failed to adequately warn her of the risks associated with implanting the TVT-O sling.⁴ Dr Rashid pleaded that he provided adequate warnings either personally during the consultation or through delegation via a specialist urology consultant nurse.⁵

The surgery took place on 8 July 2013. Post-operatively, the plaintiff complained of “suprapubic discomfort and frequency and urgency and frecurrent UTI (urinary tract infection).”⁶ The plaintiff alleged that as a result of the surgery, she had difficulty voiding urine and was required to catheterise, as well as a need for revision surgery. The plaintiff further alleged that this injury was due to a perforation of her obturator nerve caused by the TVT-O sling causing her symptoms to persist until the TVT-O implant was removed in lae 2018.⁷

On March 2017, the plaintiff made a complaint to the Health Care Complaints Commission (HCCC), stating that Dr Rashid had failed to attend to her symptoms in the weeks following the surgery.⁸

The plaintiff’s symptoms persisted and the plaintiff had the TVT-O sling removed in August 2018.⁹

The plaintiff subsequently issued proceedings in the Supreme Court of New South Wales under three causes of action:

A principle claim in negligence, regarding the failure to warn of the material risk and for negligent performance of the procedure;
Breach of contract; and
Breach of the statutory consumer guarantees regarding the provision of medical advice.¹⁰

Failure to Warn

On the issue of negligence, the Court applied a two stage test for determining whether the management of the plaintiff fell below the reasonable standard. The test involved identifying the risks of the procedure and secondly, the materiality of those risks.¹¹

The Court applied the High Court decision of Rosenberg v Percival¹² whereby identification of the relevant risk is an essential prerequisite to determining whether it is material and whether the failure to warn caused the injury. The High Court in Rosenberg v Percival determined that the state of medical knowledge at the time when the duty to warn should have been performed is “relevant to, but not decisive of, the question of what a reasonable medical practitioner ought to have foreseen,” in that a medical practitioner cannot be expected to have foreseen an event wholly uncomprehended by medical knowledge at the time.”¹³

The relevant risk that the plaintiff alleges she should have been warned of was the possibility that the TVT-O sling would result in injuries that did in fact occur: namely, urinary retention, a requirement for catheterisation, recurrent UTIs, obstruction of the urethra and the need for revision surgery to loosen or divide of the tape.¹⁴ The Court held that the latter two risks were unsupported by the evidence, in that she did not have a permanent obstruction of the urethra and she did not have a procedure to loosen or divide the tape, only to remove the TVT-O sling in August 2018.¹⁵

Given the two risks that were unsupported, the Court clarified that all risks mentioned above, save for permanent obstruction of the urethra and a procedure to loosen or divide the tape, were risks that the plaintiff should have been warned about and which could be sufficiently linked to the claimed injury.¹⁶

The Court then applied a two armed test, as stated by the High Court of Australia in its decision in Rogers v Whitaker. ¹⁷ The test requires viewing a material risk through an objective or subjective lens.¹⁸ The test recognises that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment.

The objective test states that a risk is material, if a reasonable person in the patient’s position, if warned of the risk, would likely attach significance to it. On the subjective test, a risk is material if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would likely attach significance to it.¹⁹

Based on the assessment performed by the Court, it was held that there was no evidence relied on that would engage with the subjective element of the test.²⁰ For example, the plaintiff did not intimate to Dr Rashid a risk to which she was particularly averse, notwithstanding that a reasonable person would not likely attach significance to it.

The Court identified, based on an objective test, that the following risks were within the duty of Dr Rashid to warn then plaintiff of:

low risk of short term urinary retention, particularly given the plaintiff’s pre-operative voiding symptoms;
post-operative urinary retention that may require reversal of the original procedure;
increased risk of acquiring a UTI; and
some risk that the pre-operative voiding symptoms may worsen.²¹

Based on the evidence of expert witnesses presented at trial, the Court considered that only some of the above risks had been communicated to the plaintiff by Dr Rashid and his specialist urological nurse - the risk of increased urinary retention that may result in catherisation and the possibility of persistent retention requiring the removal of the TVT-O sling were not communicated appropriately.²²

The plaintiff led expert evidence from Uro-Gynaecologist, Professor Andrew Korda. Professor Korda opined that a TVT-O sling that is successful in addressing stress urinary incontinence would be “likely to cause deterioration of voiding dysfunction” in a patient where voiding dysfunction is apparent pre-operatively.²³

Both the experts, Professor Korda and Urologist, Dr Philip Mark Katelaris for Dr Rashid, gave concurrent oral evidence. Both experts agreed that the plaintiff should have been warned about the risk of urinary retention.²⁴ They did however, differ insofar as Professor Korda considered that the pre-operative voiding problems exposed the plaintiff to a higher degree of likelihood that the TVT-O sling might lead to short term inability to pass urine and having to be catheterised to overcome retention which ought to have been discussed with the plaintiff in greater detail.²⁵ Dr Katelaris did not support this view.²⁶

The Court was ultimately satisfied that, when Dr Rashid discussed the proposed procedure with the plaintiff, her voiding problems were mild and did not worsen in the lead up to the procedure. The Court was therefore, not satisfied on the balance of probabilities, that this increased the materiality of the risk that the TVT-O sling might cause severe urinary retention requiring a catheter.²⁷

Citing the importance the plaintiff had attached to her stress urinary incontinence issues prior to surgery, it was held that, even if Dr Rashid had provided adequate warnings of the two material risks, it was probable (i.e. more likely than not) that the plaintiff would still have underwent the surgery.²⁸ As such, although there was a technical failure to warn, the plaintiff’s subjective consideration made it likely that she would have still opted for the surgery in any event.

In considering whether the surgery had been performed negligently, the plaintiff alleged that the TVT-O sling had been incorrectly inserted, resulting in it placing pressure on the surrounding nerves,which she alleged, ultimately led to her injuries.²⁹ The Court ultimately determined that the surgery had not been performed negligently, and therefore the claims in negligence were not substantiated.³⁰

Breach of Contract and Statutory Guarantees

The plaintiff further claimed that Dr Rashid had breached the contract with the plaintiff and that he failed to comply with statutory guarantees pursuant to the Australian Consumer Law (ACL), including the guarantee as to due care and skill, and fitness for a particular purpose. It was alleged that Dr Rahid was a supplier of medical services.³¹

Dr Rashid did not dispute that he was bound by the provisions of the ACL, however, at trial, he successfully argued that the plaintiff’s cause of action was not substantiated, based largely on the failure of th plaintiff to prove that she had not recieved the relevant warnings as to material risks of the procedure. The Court ruled that Dr Rashid breach the two statutory duties being guarantee to render services with due care and skill,³² and guarantee that the services will be reasonably fit for a particular purpose,³³ therefore allowing the plaintiff to recover damages for any loss or damage suffered by the plaintiff because of the failure to comply with such guarantees.³⁴ However, the plaintiff was not able to prove that she suffered any loss or damage because of these breaches. The Court held that the mere breach of a duty did not amount to a successful claim.³⁵

Claim against the Hospital

The plaintiff also brought a claim against the hospital where the surgery was performed. The hospital denied any vicarious liability for any negligence on the part of Dr Rashid, in the performance of the priocedure. The hospital did, however, admit that they had a non-delegable duty to ensure that the surgery by Dr Rashid was carried out with reasonable care, on the basis that the plaintiff was a public patient at the hospital where the procedure was performed.³⁶ The judgment only considered the claim against Dr Rashid on the basis that the advice given by Dr Rashid was in the course of his private practice and the plaintiff accepted that the causes of action brought against the hospital were separate.³⁷

Implications

This case is an age-old reminder to practitioners that they must warn a patient of all material risks of a procedure. A risk is material if a reasonable person in the patient’s position, if warned of the risk, would likely attach significance to it or if the practitioner is or should be aware that the particular patient would likely attach significance to it.

However, a clear failure by a practitioner to warn of material risks does not on its own establish liability. Causation remains critical, as the plaintiff must show that they would not have undergone the procedure if proper warnings had been given. If an underlying condition is long-standing, serious and driving the patient to seek treatment, that retrospective assertion may be difficult to prove.

For medical practitioners, the Stott decision reinforces the forensic value of a thorough explanation of risks and alternatives before patients undergo surgery. This can be evidenced by reference to various documentation, including signed consent forms, consultation notes, Specialist College pamphlets and correspondence to referring practitioners, as well as confirmation that patients have understood the information.

Footnotes

^{1 Stott v Rashid [2025] NSWSC 1379}

^{2 Above n 1, at [290]}

^{3 Above n 1, at [57]}

^{4 Above n 1, at [31]}

^{5 Above n 1, at [87-90]}

^{6 Above n 1, at [65]}

^{7 Above n 1, at [19] and [31-34]}

^{8 Above n 1, at [17]}

^{9 Above n 1, at [41]}

^{10 Above n 1, at [5]}

^{11 Above n 1 at [94]}

^{12 Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18}

^{13 Above n 11, at [67], referred to in Stott v Rashid, Above n 1, at [188]}

^{14 Above n 1, at [31-33]}

^{15 Above n 1, at [190]}

^{16 Above n 1, at [190-191]}

^{17 Rogers v Whitaker [1992] HCA 58, referred to in Stott v Rashid, Above n1, at [192]-[193].}

^{18 Referred to in Stott v Rashid, Above n 1, at [193]}

^{19 Above n 17, referred to in Stott v Rashid above n 1, at [193-195]}

^{20 Above n 1, at [195]}

^{21 Above n1, at [216]}

^{22 Above n 1, at [265]}

^{23 Above n 1, at [197]}

^{24 Above n 1, at [200]}

^{25 Above n 1, at [203]}

^{26 Above n 1, at [203]}

^{27 Above n 1, at [204]}

^{28 Above n 1, at [289]}

^{29 Above n 1, at [316]}

^{30 Above n 1, at [327]}

^{31 Competition and Consumer Act 2010 (Cth) Sch 2 Australian Consumer Law ss 60, 61 and 267, referred to in Stott v Rashid, above n 1 at [5] and [335]}

^{32 Above n 31 s 60}

^{33 Above n 31 s 61}

^{34 Above n 31 s 267}

^{35 Above n 1, at [336]}

^{36 Above n 1, at [3]}

^{37 Above n 1, at [4]}

Originally published 11/05/2026.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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