Medical practitioners have a responsibility to exercise reasonable care and skill when providing professional advice and treatment. Central to this duty is the obligation to warn patients of any material risks associated with the proposed treatment. A material risk is one that a reasonable person in the patient’s position would consider significant and relevant to their decision-making.
However, proving the practitioner failed to warn them of a material risk is only half the battle. A claimant must also establish, on the balance of probabilities, that had they been adequately advised of the relevant risks, they would have chosen not to undergo the treatment or procedure. A claimant cannot simply claim after their injury that they would not have undergone the treatment if they had been warned about the risks.
The recent Supreme Court decision in Stott v Rashid [2025] NSWSC 1379 vividly illustrates this challenge.
The Claim
The plaintiff, who had lived with stress urinary incontinence (SUI) since childhood, underwent a mid-urethral sling procedure using tension-free tape, performed by a urologist. She later developed difficult bladder emptying, recurrent UTIs, and chronic pain. She alleged that the surgeon failed to warn her about these potential complications and that, had she been properly informed, she would never have consented.
The Court’s Reasoning: No Causation
The New South Supreme Court accepted that the plaintiff was not warned of two low-probability risks, short-term urinary retention and possible revision surgery or sling removal, before the procedure.
However, the Court concluded that, on the balance of probabilities, the surgeon’s failure to warn the plaintiff of the risks would not have altered her decision to undergo the procedure.
Why the Missing Warning Had No Material Impact
1. Her SUI was severe, long-standing and worsening
Despite her attempts at trial to downplay the condition, contemporaneous records and her own earlier descriptions showed SUI was significantly affecting her daily life, exercise, social events and sexual activity. The Court found she was highly motivated to find a solution.
2. She had exhausted conservative treatments
After years of pelvic-floor exercises and multiple consultations, the plaintiff viewed surgery as her last viable option.
3. She habitually discounted risks
The plaintiff admitted she “focused on the positives,” believing that her youth and fitness meant complications were unlikely. The Court found she would have reacted the same way to the 1–4% risks she claimed she should have been told about.
4. Her post-operative behaviour revealed her real priorities
Perhaps most compellingly, after the surgery, she repeatedly refused further procedures that could have improved her voiding problems as she feared a return of incontinence. Even in 2016, three years after developing complications, she declined tape release due to the slight risk of SUI returning.
To the Court, this showed that continence was of such high importance to her that low-probability risks would never have deterred her from the initial operation.
The Bottom Line
The Court concluded that although there was a failure to warn, it did not cause the injury. The plaintiff’s desire to eliminate her debilitating incontinence far outweighed the small risks she claimed she should have been told about. The medical negligence claim was dismissed.
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