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.

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