Assessing Damages for a Breach of the Duty to Warn: Is the Patient Compensated for the Loss of a Chance, or the Chance of a Loss

In the 1992 case of Rogers v. Whitaker, the High Court of Australia may not have rendered asunder the floodgates which metaphorically hold back the tide of American-style malpractice litigation. But though the sluice has not yet been fully breached, the flow of “blame and claim” law-suits has increased from a steady trickle to a minor torrent. Many of these are in the nature of “failure to warn” claims, encouraged – if not inspired – by the decision in Rogers v. Whitaker.