What you need to show in a surgical error claim in Queensland (2026)

Marshall FenechWritten byMarshall Fenech Last reviewed

A surgical error claim in Queensland generally needs to show two things. First, the surgeon’s care fell below the standard in Civil Liability Act s 22. Second, that failure caused your injury (s 11). Before court, you must give an initial notice under PIPA s 9A, then Part 1 of the Notice of Claim with a specialist’s report.

Written and fact-checked by Marshall Fenech, Editor. Legal rules checked against official Queensland sources on 21 October 2026. How we check facts.

Surgical error claim in Queensland: a patient talking with a doctor at an appointment

Key takeaways

  • A complication isn’t automatically negligence. A surgeon generally doesn’t breach their duty if they acted in a way widely accepted by peer professional opinion as competent practice (CLA s 22).
  • A separate test applies to warnings about risks. A doctor must give the information a reasonable person in your position would need, and information they know you want (CLA s 21).
  • You must prove causation on the balance of probabilities (CLA ss 11–12).
  • The initial notice under PIPA s 9A is generally due by the earlier of 9 months after the surgery (or first symptoms) and 1 month after you first instruct a law practice.
  • Part 1 of the Notice of Claim must include a written report from a medical specialist, and is due within 12 months after the provider responds to the initial notice (s 9A(9)).

Can you sue for a surgical mistake in Queensland?

Yes, you can make a surgical error claim if a surgeon or hospital was negligent and this caused your injury. However, surgery always carries some risk. A bad result, on its own, doesn’t prove anyone did the wrong thing.

Queensland law sets out what you need to show. The Civil Liability Act 2003 (CLA) sets the standard of care and the causation tests. Meanwhile, the Personal Injuries Proceedings Act 2002 (PIPA) sets the steps before court. Our medical negligence claims guide covers the whole process. This page goes deeper on what a surgical error claim must prove.

The standard of care: peer professional opinion

The main test for a surgeon’s treatment is in CLA s 22. A professional doesn’t breach their duty if they acted in a way that, at the time, “was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice”.

There are limits to this defence:

  • a court won’t rely on peer opinion it considers irrational or contrary to a written law (s 22(2));
  • differing opinions can each be relied on, if each is widely accepted by a significant number of respected practitioners (s 22(3));
  • peer opinion doesn’t need to be universally accepted (s 22(4));
  • the test doesn’t apply to warnings or information about risk (s 22(5)).

Evidence in a surgical error claim

In practice, a surgical error claim usually turns on expert opinion. That is because the question is what respected surgeons in the field accepted as competent at the time. The general negligence tests in s 9 also apply, such as whether the risk was foreseeable and not insignificant.

In addition, s 16 says there is no liability in negligence for the materialisation of an inherent risk. That is a risk that can’t be avoided by the exercise of reasonable care and skill. However, s 16 doesn’t exclude liability for a failure to warn.

The duty to warn about surgical risks

Some claims are not about how the operation was done. Instead, they are about whether you were properly told of the risks. The test is in CLA s 21. A doctor breaches the duty to warn only if they fail to give, or arrange, two kinds of information:

  • information a reasonable person in your position would need to make a reasonably informed decision about the treatment; and
  • information the doctor knows, or ought reasonably to know, you want before deciding.

Causation in a surgical error claim

Proving a mistake is only part of a surgical error claim. You must also show it caused your injury. Under CLA s 11(1), the breach must be a necessary condition of the harm (factual causation). It must also be appropriate for the surgeon’s liability to extend to that harm (scope of liability). Under s 12, you always bear the onus of proving causation on the balance of probabilities.

Warning claims raise a further question: what would you have done if properly warned? Under s 11(3), the court decides this subjectively, in light of all relevant circumstances. However, your own later statement about what you would have done is inadmissible. The exception is any part that is against your interest.

Step 1: the initial notice under section 9A

A surgical error claim involving a doctor begins with an initial notice under PIPA s 9A. You must give it before Part 1 of the Notice of Claim. It must state that it is given under s 9A and include:

  • your full name, address, any other names and your date of birth;
  • a description of the medical services and the injury;
  • the doctor’s name, if known;
  • the dates and places the services were provided.

When and where the initial notice goes

The initial notice is due by the earlier of 9 months after the medical incident (or first appearance of symptoms) and 1 month after you first instruct a law practice, once the respondent is identified (s 9A(4)). For a public hospital run by a Hospital and Health Service, the notice goes to its health service chief executive (s 9A(7)).

Within 1 month, the provider must tell you whether it holds documents about the services. It must also give you copies of them (s 9A(8)). Apart from that, it has no obligation to investigate or respond to the initial notice (s 9A(12)).

Step 2: the surgical error claim notice and specialist report

Medical claims follow their own Part 1 timing. Under s 9A(9), the general s 9(3) deadline doesn’t apply. Instead, Part 1 is due within 12 months after the provider complies with s 9A(8). With Part 1, you must give a written report from a medical specialist competent to assess the incident. The report must state, in the specialist’s opinion:

  • that there was a failure to meet an appropriate standard of care in providing medical services;
  • the reasons for that opinion; and
  • that you suffered personal injury as a result.

Surgical error claim time limits

If the claim is only about a failure to warn, the report doesn’t need to address that failure (s 9A(10)). After Part 1, the usual PIPA steps follow, including the compulsory conference under s 36. The table sets out the main dates.

Main time limits for a Queensland surgical error claim. Sources: Personal Injuries Proceedings Act 2002 ss 9A, 36; Limitation of Actions Act 1974 ss 11, 31. Checked 21 October 2026.

Step

Time limit

Law

Initial notice

The earlier of 9 months after the surgery (or first symptoms) and 1 month after you first instruct a law practice, once the respondent is identified

PIPA s 9A(4)

Provider’s reply and copies of records

Within 1 month after receiving the initial notice

PIPA s 9A(8)

Part 1 of the Notice of Claim, with specialist report

Within 12 months after the provider complies with s 9A(8)

PIPA s 9A(9)

Compulsory conference

Must be held before court proceedings start

PIPA s 36

Starting court proceedings

Generally 3 years from when the cause of action arose

LAA s 11

Extension for a newly discovered decisive fact

A court may extend to 1 year after the fact came within your means of knowledge

LAA s 31

Late surgical error claim notices, complaints and apologies

If the initial notice is late, the obligation continues, and you must give a reasonable excuse in it (s 9A(6)). A Health Ombudsman complaint can help here (s 9A(6A)(c)). You have a reasonable excuse if you complained within 2 years of becoming aware of the matter. You must then give the notice as soon as practicable after the complaint ends.

The Office of the Health Ombudsman says it “cannot compel a health service provider to compensate you for pain, suffering or loss of income”. What if a surgeon says sorry? Under CLA s 72, an expression of regret made before court proceedings is not admissible in them. Court time limits under LAA s 11 still run.

Surgical error claim costs and next steps

Specialist reports and records make surgical error claims evidence-heavy. Our guide to lawyer fees explains costs disclosure and the 50/50 rule. If the injured person is a child, special rules apply, as our guide to a birth injury claim explains. You can also see how we compare firms on our compare page.

Frequently asked questions

No. Under Civil Liability Act s 22, a surgeon generally doesn’t breach their duty if peer professional opinion widely accepts their conduct as competent. Under s 16, there is no liability in negligence for an inherent risk that reasonable care and skill could not avoid. A failure to warn of a risk is assessed separately under s 21.

It is the standard in Civil Liability Act s 22. A professional doesn’t breach their duty if a significant number of respected practitioners widely accepted their conduct as competent practice. A court won’t rely on an opinion it considers irrational or contrary to a written law. Also, the test doesn’t apply to warnings.

This is the first formal step under PIPA s 9A, given before Part 1 of the Notice of Claim. It sets out your details, the surgery, the doctor if known, the dates and places, and your injury. Generally, it is due 9 months after the surgery or first symptoms, or 1 month after you instruct a law practice, if earlier.

Yes, for Part 1. Under PIPA s 9A(9), Part 1 must include a written report from a medical specialist competent to assess the incident. The report must say care fell below an appropriate standard and why. It must also say you were injured as a result. Failure-to-warn allegations need not be addressed.

The general court limit is 3 years from when the cause of action arose (Limitation of Actions Act s 11). Before that, you must give the s 9A initial notice, generally within 9 months. Part 1 then follows within 12 months after the provider responds. A court may extend time if a decisive fact was discovered later (s 31).

Sources

Initial notice and time limits for medical negligence claims in Queensland

How a medical negligence claim works in Queensland: the s 9A initial notice, Part 1, Health Ombudsman complaints and…

Read the guide

Birth injury claim time limits and steps for Queensland families

A guide for families on a birth injury claim in Queensland: the special PIPA notice rule for children, court time…

Read the guide

Personal injury lawyer fees in Queensland, including no win no fee and the 50/50 rule

Personal injury lawyer fees in Queensland: how no win no fee agreements, the 25% uplift cap, the 50/50 rule and…

Read the guide
Marshall Fenech, Editor of Compare Personal Injury Lawyer QLD

About the author

Marshall Fenech, Editor

Marshall Fenech is the editor of Compare Personal Injury Lawyer QLD. He researches Queensland personal injury law firms and claim rules, checks every fact against public sources such as the Queensland Law Society, MAIC, WorkCover Queensland and Queensland legislation, and dates each check. He does not give legal advice.

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