Why known surgical risks can make compensation claims more challenging in NSW
When a medical or surgical procedure goes wrong, the consequences for a patient can be life-changing. However, not every poor outcome will amount to medical negligence under Australian law. Many procedures come with what the law recognises as inherent risks—complications that can occur even when a doctor acts with reasonable care and skill.
Understanding how inherent risks work, and why they can limit a patient’s ability to pursue a medical negligence claim, is essential for anyone affected by an unexpected surgical outcome.
What Are “Inherent Risks”?
Under Australian law, an inherent risk is a complication that may occur despite the exercise of reasonable care and skill. This concept is recognised in the Civil Liability Act 2002 (NSW), which states that a medical professional cannot be held negligent simply because an inherent risk materialises, so long as their treatment otherwise met the standard of care.
Examples of inherent risks include:
- Infection after surgery
- Nerve injury during spinal, dental or cosmetic procedures
- Bleeding or vascular damage
- Anaesthetic complications
- Scarring or poor cosmetic outcomes
These risks are often accepted as part of the procedure itself, even if uncommon.
The Legal Test for Negligence
For a successful medical negligence claim, a patient must prove:
- The practitioner breached their duty of care; and
- The breach caused the injury, rather than the known risk simply occurring.
Australian courts use the peer professional opinion test (Civil Liability Act, s 5O), which assesses whether the practitioner acted in a way accepted by competent peers.
If the doctor acted in a manner widely accepted as competent and the complication was a recognised inherent risk, negligence cannot be established.
Why Claims Are Difficult When a Known Risk Occurs
1. A poor outcome alone is not evidence of negligence
The law distinguishes between an adverse outcome and negligent conduct. If the complication is one the profession recognises as possible, courts generally view it as a risk of the procedure, not a sign of wrongdoing.
2. Doctors only need to act reasonably, not guarantee success
Medicine involves uncertainty. Even the most skilled practitioner cannot eliminate all risks.
3. Causation becomes harder to prove
The patient must prove that the injury occurred because the doctor did something wrong, not merely because a known risk eventuated.
If the complication could happen even with correct technique, causation often breaks down.
4. Expert evidence may favour the practitioner
Medical negligence cases rely heavily on independent expert reports. Where the literature recognises the complication as an inherent risk, experts may be reluctant to find fault unless the evidence of error is clear.
5. Informed consent does not protect against negligence — but it limits arguments
A doctor still owes a duty to warn of material risks. Failure to warn can form a standalone claim. But even where consent is disputed, the patient must still prove that the doctor’s conduct—not the risk itself—caused the harm.
When a Known Risk May Still Lead to a Successful Claim
Even where a complication is recognised as an inherent risk, negligence may still be established if:
- The procedure was performed carelessly or without appropriate skill
- Incorrect technique was used
- Safety protocols were not followed
- Post-operative care was inadequate
- The doctor failed to warn the patient about the specific risk and the patient would have declined the procedure had they been warned
- A different procedure should have been recommended
- A practitioner performed the procedure outside their scope of expertise
These cases require strong evidence, including expert medical opinions and a detailed review of records.
What Patients Should Do if They Experience a Complication
- Request copies of medical and hospital records
- Document symptoms, impacts and dates
- Seek early legal advice from experienced medical negligence lawyers
- Avoid assuming that “it’s just a risk” — each case turns on its own facts
How BPC Lawyers Can Help
Medical negligence claims are among the most complex areas of personal injury law. Our team has extensive experience acting for patients who have suffered harm due to negligent medical treatment, delayed diagnosis or inadequate care.
We review:
- The standard of care provided
- Whether the complication was inherent or avoidable
- Whether risks were properly explained
- Whether the practitioner’s conduct contributed to the injury
If a known risk occurred, we can help determine whether negligence played a role and advise you clearly on your options.
If you’d like us to assess your matter, please contact our office for a confidential discussion.