Written by: David Cossalter Facing surgery can be overwhelming, and when we agree to a procedure, we place significant trust in the surgical team responsible for our care. Yet, as of 2018, an estimated 1 in 9 Australians admitted to hospital experience a complication, rising to as many as 1 in 4 for overnight stays. Surgical incidents remain one of the leading causes of serious patient harm.
If you’ve suffered a surgical error due to medical malpractice or negligence, you may be entitled to compensation. This December 2025 guide explains what surgical negligence is, what you may be able to claim, applicable time limits, and the steps to take next.
Understanding surgical negligence and surgical errors
Surgical negligence is a type of medical negligence, which means a practitioner failed in their duty of care. Surgical negligence is considered different from surgical errors that happen during an emergency.
What is surgical negligence?
Surgical negligence cases can be made when a member of the surgical team fails to follow established protocols or provide the standard of care a patient is entitled to. It relates to the decisions made before or during the procedure, rather than the technical execution of the surgery itself. If a medical professional fails to take an action that a competent practitioner would ordinarily take, this may constitute negligence.
In many cases, surgical negligence becomes evident only after the procedure, such as:
- The patient needing corrective surgery
- The patient developing a serious illness
- Complications resulting from the surgical team’s action or inaction.
How do surgical errors occur?
Surgical errors happen when the recommended treatment is appropriate, but a mistake occurs during the operation. These errors can be minor or severe, including:
- Operating on the wrong site or patient
- Performing the wrong procedure
- Leaving surgical instruments or materials inside the body.
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What is considered a surgical error?
The type of surgical error that is grounds for compensation is one that causes harm and that could have been avoided. If they didn’t show the level of care and attention that is expected of them in their line of work, they can be seen to have failed in their duty of care toward a patient. If harm resulted, they can be held culpable.
The most common types of surgical errors are typically in one of the following categories:
| 1. Wrong site or wrong body part surgery | Operating on the wrong area can have serious consequences. In extreme cases, it could result in the wrong limb being amputated.
Even in less severe situations, performing surgery on the wrong site can mean the underlying medical condition goes untreated, allowing it to worsen over time. |
| 2. Unwanted or unnecessary surgery | A surgeon who performs a surgery that was unnecessary, unwanted or not consented to (except in cases to save a patient’s life) can be the basis of a compensation claim.
An example of this is a doctor performing a procedure to remove a single ovary but taking both ovaries out without clear reason or consent from the patient. |
| 3. Infections from improper practices | Post-operative infections are unfortunately common in hospitals, often due to superbugs. However, if an infection results from a surgeon using contaminated instruments or another lapse in proper surgical practice, the surgical team can be held responsible. |
| 4. Incomplete procedures | If a surgeon doesn’t correctly finish the procedure, and this causes harm to the patient, there might be grounds for a compensation claim.
An example of an incomplete surgical procedure could be leaving a wound improperly or inadequately stitched. |
| 5. Retained surgical materials | A doctor in a hurry to close can miss a sponge or a small clamp inside the patient which can cause severe infection or damage to an organ. Surgical error compensation would almost certainly be awarded in such cases. |
| 6. Disfigurement or unintended damage | If you suffer unnecessary damage or disfigurement as a result of your surgery, whether by improper handling of a scalpel, poor technique or any other reason, the surgical team can be held to account for the injury caused.
This includes damage to another body part, such as damaging one organ while working on another. |
| 7. Failure to warn of surgical risks | All surgery carries some level of risk, and it’s your right as a patient to know about this so you can make an informed decision about the procedure.
If a doctor performs a surgery and doesn’t tell you that the result could have an ongoing impact (for example, limited mobility or infertility), a surgical error claim might be made. |
Legal insight
Even if a surgical error has occurred, successfully claiming compensation depends on proving that the harm was directly caused by the surgeon’s negligence. It must also be shown that the harm was reasonably preventable. Keeping detailed medical records, obtaining second opinions, and documenting all communications with your healthcare provider can strengthen a potential claim.
Can you claim compensation for surgical negligence?
If you have suffered harm, including physical or psychological injuries, as a result of surgical negligence, you may be entitled to compensation.
Common grounds for compensation
Compensation is not awarded simply because a surgical error occurred; it is awarded when the error directly causes preventable harm. Some common grounds include:
- Physical injury or worsening of your condition: If a surgical mistake causes additional injury, prolongs recovery, or leaves your original condition untreated, compensation may be granted.
- Unnecessary procedures: Surgeries that were not medically required or performed without proper consent can justify a claim, particularly if they lead to complications or permanent changes.
- Infections or medical complications caused by negligence: Compensation can cover harm from preventable infections or complications that arose due to improper sterilisation or unsafe surgical practices.
- Permanent disfigurement or loss of function: When a surgical error results in lasting physical changes, such as scarring, loss of mobility, or damage to other organs, compensation can reflect both medical costs and quality-of-life impacts.
- Psychological harm: Emotional distress, anxiety, or trauma resulting from the error or its consequences may also be compensable.
- Financial and lifestyle impacts: Lost income, ongoing medical expenses, home modifications, and other financial losses resulting from the error are commonly included in claims.
Types of harm compensated
Each compensation claim is unique, and the amount you may receive depends on the specific impact of the surgical error. Broadly, compensation can cover several categories of harm:
| Physical harm |
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| Psychological harm |
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| Financial losses |
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| Lifestyle and quality-of-life impacts |
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Legal insight
Compensation is calculated based on both tangible costs (medical bills, lost income) and intangible effects (pain, suffering, emotional distress). Documenting all medical records, financial impacts, and personal accounts of daily struggles can significantly strengthen a claim.
Time limits for making a claim
Even if a surgical error isn’t discovered until years after the procedure, you may still have a valid claim, depending on the type of error and the injury it caused.
In most parts of Australia, a surgical negligence claim must be filed within three years of discovering the negligence. This is known as the discoverability period.
There is also a long-stop limit of 12 years from the date the negligence occurred, which acts as the absolute deadline for making a claim, regardless of when the error was discovered.
Time limits by state
| State / territory | Time limit to make a claim | Governing legislation |
|---|---|---|
| ACT | 3 years from discoverability; 12-year long-stop from date of incident | Limitation Act 1985 |
| QLD | 3 years from the date of negligence; extensions possible for injuries that develop later | Limitation of Actions Act 1974 |
| NSW | 3 years from the date of discoverability; 12-year long-stop from the date of the act or omission | Limitation Act 1969 |
| NT | 3 years from the act or omission; a 10-year long-stop may apply in some cases | Limitation Act 1981 |
| SA | 3 years from discoverability; a 12-year long-stop generally applies | Limitation of Actions Act 1936 |
| TAS | 3 years from discoverability; a long-stop is not always applied but may apply in some cases | Limitation Act 1974 |
| VIC | 3 years from discoverability; 12-year long-stop | Limitation of Actions Act 1958 |
| WA | 3 years from discoverability; 12-year long-stop | Limitation Act 2005 |
While these time limits might feel restrictive, especially when you’re still recovering from harm, the law does allow for some flexibility in specific situations, such as for children, people with disabilities, or those with delayed diagnoses.
Key takeaway
In most parts of Australia, you have to make your surgical negligence claim within three years from the date you discover the negligence, known as the discoverability.
What to do if you suspect negligence
If you suspect surgical negligence, the first thing you should do is gather as much documentation as possible about your medical history and speak to a lawyer to act on your behalf.
1. Gather all relevant documentation
Start by collecting your complete medical history. Request records from every doctor, hospital, and clinic where you’ve received care. Include printouts of test results, discharge summaries, surgical notes, and any correspondence related to your treatment.
Also, gather documentation specifically related to the incident you believe was negligent, starting from the initial complaint or consultation that led to the procedure. Written statements from family members, carers, or colleagues who can speak to your health before the surgery can further support your case.
Organise everything into a file so it’s ready to provide to your medical negligence solicitor.
2. Keep a detailed record of your experience
Maintain a personal log of your recovery, symptoms, and any complications resulting from the surgery. Include dates, descriptions, and how the issues have impacted your daily life.
Photographs, receipts for medical expenses, and notes on missed work can also be useful.
3. Consult a legal expert
Book a consultation with a personal injury or medical negligence lawyer. They will review your documentation, discuss the circumstances of your case, and advise whether you have a valid claim for medical negligence, surgical negligence, medical malpractice, or another type of legal action.
During this consultation, your lawyer can also estimate the potential compensation you may be entitled to, including medical costs, lost income, and damages for pain and suffering.
Many medical negligence lawyers, including our team at GMP Law, work on a No Win No Fee basis. Meaning, you can explore your options, and you won’t pay any legal fees unless your claim is successful.
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Real case examples of surgical negligence and errors
| Case details | Surgical negligence | Outcome |
|---|---|---|
| A single mother in Sydney underwent foot surgery to treat neuromas. The procedure left her toes deformed, causing constant pain and limiting mobility and footwear options. | The foot osteotomy was performed negligently, resulting in deformity and long-term pain. | $250k |
| A client underwent surgery for a full-thickness rotator cuff tear. After the procedure, he experienced extreme pain, suffered injury to his biceps, and developed a post-operative infection requiring further surgery. | The orthopaedic surgeon negligently performed the rotator cuff repair and mishandled the biceps sutures, causing additional injury and complications. | $550k |
| A client in his early 50s underwent a hemicolectomy to remove pre-cancerous polyps. He developed an infection at the operation site, suffered septicaemia, and required further surgery. | Doctors failed to act promptly on post-operative scans, resulting in delayed diagnosis and treatment of the infection. | $405k |
| A client underwent a keyhole hysterectomy for uterine fibroids and adhesions. More than a week later, she developed a serious illness and was diagnosed with ureter damage, requiring a transplant and a difficult recovery. | The surgeon failed to identify or prevent ureter injury during surgery, resulting in significant post-operative complications. | Six-figure settlement |
| A client injured his right hip and over-relied on his left leg. He developed fractures in both legs and ultimately required a total right hip replacement and a left femur osteotomy with intramedullary nail fixation. | Doctors failed to adequately manage the client’s underlying bone condition and the over-reliance on the uninjured leg, leading to additional fractures and surgical interventions. | $180k |
