Inherent risks of medical procedures

Mar 29, 2023 | Publication

Doctors have a duty to warn you of inherent risks involved in a medical procedure.  A doctor’s duty to warn of inherent risks is to protect you from injury that is unacceptable.

If for example, you underwent a surgical procedure relating to your spine. The doctor would have to warn you of the inherent risks such as nerve damage and paralysis.

However, if one of these risks eventuated (you suffered nerve damage for example) and your doctor did not warn of the risks the doctor could be said to have breached his duty of care to you.

However, you must then prove that had the doctor warned you of the risk of nerve damage, you would not have gone ahead with the operation. If you would have gone ahead with the procedure despite being informed of the risks than the failure to warn could not be said to have caused the injury.

In summary, the following must occur:

  1. Doctor fails to warn of the risks;
  2. the risk eventuates; and
  3. had you been warned of the risk, you would not have proceeded with the procedure.

The underlying policy behind the court only providing protection for failure to warn of risks which eventuate is that liability should not extend to harm from risks that the patient was willing to hazard.

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

Latest Insights

How Vicissitudes Impact Future Economic Loss in Legal Cases

When it comes to calculating future economic loss in legal cases, one concept that often arises is "vicissitudes." But what exactly are vicissitudes, and how do they affect the compensation awarded to plaintiffs? In this article, we'll delve into the definition of...

Can you still make a claim?

Many claims have limitation periods. A limitation period is a set time frame within which an aggrieved person must commence proceedings in a Court. These limitation periods generally commence from the date of the injury and/or incident. Some claims however, such as...

Teacher convicted for failing to report sexual abuse of a child

Teacher, Mr Webb of Trinity College Perth, was unsuccessful in his appeal against his conviction of failing to report sexual abuse of a child in a decision delivered on 13 October 2021. In April 2017, a group of boys from the school went on a school rugby trip to...

Annual Dinner – Parramatta & District Regional Law Society

Western Sydney's legal profession gathered for the Annual Dinner of the Parramatta & District Regional Law Society at CommBank Stadium! We are particularly grateful to Dr Hugh McDermott MP, Parliamentary Secretary to the Attorney General, Senior Vice...

What compensation can I get if I have been injured at work?

If you have a work-related injury or illness, you may be able to claim compensation for lost income, medical expenses, travel expenses, domestic assistance, pain and suffering and permanent impairment. All employers are required to have workers compensation insurance...

Court makes provision for son left out of father’s Will

The recent Supreme Court of New South Wales decision of Rathswohl v Court  NSWSC 356, involved 3 siblings disputing their entitlements to their late father’s estate. The defendant, Yvette, claimed she cared for her father for the last 18 months before he...

If I die without a Will what can happen?

If you die without a Will there can be many unintended consequences. Some of these consequences may be: A person who you do not intend could control your estate.  This could even be someone you do not know.  An executor is a person who controls an estate...