Surgery complications: When is your surgeon liable?

Surgery always carries risks. Even with the best surgeon and careful planning, complications can occur. But when post-operative complications happen, how do you know whether it is an unavoidable risk or whether your surgeon made a mistake?

At Maliganis Edwards Johnson, we help patients who have suffered harm from surgical negligence in the ACT. Here is what you need to know about when your surgeon may be legally liable.

When complications become negligence

Not every complication after surgery is someone’s fault. Surgery is inherently risky, and even when everything is done correctly, things can go wrong.

Surgical negligence occurs when your surgeon’s care falls below the standard expected of a reasonably competent surgeon. This might involve poor surgical technique, inadequate planning, failure to recognise risks or complications, operating on the wrong site, leaving instruments inside your body, or failing to obtain proper informed consent.

The key question is whether a reasonable surgeon would have acted differently in your circumstances.

Common complications that may indicate negligence

Infections: While some surgical site infections are unavoidable, they can result from poor sterile technique, inadequate wound care, or failure to treat early warning signs appropriately.

Excessive bleeding: Some bleeding is normal, but excessive bleeding may indicate damaged blood vessels, inadequate control during surgery, or failure to monitor and respond appropriately.

Organ or nerve damage: Accidental damage can happen with careful technique, but may also result from careless surgery, operating without adequate visibility, or failure to properly identify anatomical structures.

Anaesthesia complications: Problems with anaesthesia causing brain damage, allergic reactions not properly managed, incorrect dosing, or failure to monitor vital signs can indicate negligence.

Wrong site surgery: Operating on the wrong body part or performing the wrong procedure is always negligent.

Retained surgical instruments: Leaving sponges or instruments inside your body is negligent and represents a failure of basic safety protocols.

Post-operative care failures: Inadequate monitoring, failure to recognise warning signs, premature discharge, or insufficient follow-up can all constitute negligence.

Even if your surgeon performed the operation correctly, they may be liable if they failed to properly inform you about the risks. This is called failure to obtain informed consent.

Your surgeon must explain the nature of the surgery, material risks of the procedure, alternative treatment options, and what might happen if you do nothave surgery. If a risk eventuates that you were not warned about, and you would not have proceeded if properly informed of the risks to a reasonable standard, your surgeon may be liable.

Proving surgical negligence 

To succeed in a claim, you need to show that your surgeon owed you a duty of care, they breached that duty by falling below acceptable standards, this breach caused you harm, and you have suffered actual losses.

This requires expert medical evidence from other surgeons who can assess whether your care was adequate. At MEJ, we work with leading medical experts to support your claim.

If you establish surgical negligence, you may be entitled to compensation for additional medical expenses to treat complications, lost income from extended time off work, pain and suffering from complications and additional procedures, future care needs, and loss of enjoyment of life if complications have permanently affected your quality of life.

Time limits in the ACT

You generally have three years from when you first suffered injury  to start legal action. The precise limitation period may be different in your case. Early advice is important to ensure you do not miss deadlines and to preserve evidence.

What to do if you suspect surgical negligence

• Seek appropriate medical treatment for your complications, even if that means seeing a different surgeon. 
• Request your medical records – you have a legal right to all surgical notes, anaesthetic records, and documentation. 
• Document your experience including symptoms, treatments, time off work, and impact on daily life. 
• Do not assume complications are just “one of those things”. Get independent advice. Contact a specialist medical negligence lawyer early to understand whether you have a valid claim.

Our medical negligence practice is led by Kate Waterford, recognised as one of only two pre-eminent medical negligence lawyers in the ACT. When you trust a surgeon with your health, you deserve to have that trust honoured. If you have experienced serious complications after surgery, contact MEJ for a free, confidential consultation.

Call us on 1800 570 778 or contact us online.