Damage to the ureter, bladder or bowel during a hysterectomy or other gynaecological surgery is usually not negligence on its own. Those organs sit within millimetres of the surgical field, and every recognised technique carries a risk of injuring them. What more often supports a claim is what happened next: whether the injury was looked for, recognised and repaired, or whether it went unnoticed for days while you got worse.
Two other situations can support a claim. The first is surgery you did not need, where a reasonable gynaecologist would have investigated further or offered a less drastic option. The second is consent: if an ovary, a fallopian tube or the uterus itself was removed without that being discussed and agreed beforehand, the question becomes what you were told and what you would have decided. In Victoria the standard of care and the duty to warn are both set by the Wrongs Act 1958.
| Usually not negligence on its own | May support a claim | |
|---|---|---|
| Ureter, bladder or bowel injury | Injury despite reasonable technique, identified during the operation and repaired then | Injury not looked for, missed for days, or repaired so late that further damage follows |
| The decision to operate | Surgery recommended after appropriate investigation, with the alternatives put to you | Surgery a reasonable gynaecologist would not have recommended on what was known then |
| Removing ovaries or tubes | Removal raised beforehand, with the benefits and harms explained, and agreed | An organ removed that was never discussed, or an alternative never explained |
| Who operated | A procedure within the surgeon's credentialled scope of practice | A complex case done without the team college guidance contemplates |
| What you were told after | A full explanation, which Victorian health services owe you under the duty of candour | Nothing explained. Not proof of negligence, but a reason to get the records |
If you came out of surgery with an injury nobody warned you about, you have probably been told it was one of those things. Sometimes that is true. It is not a complete answer.
Is damage to the ureter, bladder or bowel during surgery negligence?
Not by the fact of the damage alone. The Victorian Government's Better Health Channel lists the risks of a hysterectomy as "blood loss, infection, blood clots, a reaction to anaesthesia, damage to abdominal organs, such as the bladder, bowel or ureters". The ureters run close to the cervix, the bladder sits in front of the uterus, and bowel can be stuck to the pelvic organs where there has been endometriosis or earlier surgery.
Section 48 of the Wrongs Act 1958 (Vic) sets the test. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, the risk was not insignificant, and a reasonable person in their position would have taken those precautions. Section 58 measures a surgeon against what could reasonably be expected of someone with that skill, at the date of the alleged negligence.
Section 59 is what defendants rely on. A professional is not negligent if they acted in a way that was, at the time, widely accepted in Australia by a significant number of respected practitioners as competent professional practice. A court can set that opinion aside only if it finds it unreasonable.
So the question is rarely whether the ureter was cut. It is how the operation was planned and performed, and whether the case belonged with a more specialised team.
What if nobody found the injury until days later?
This is where most of these claims actually live. An injury found during the operation and repaired then is a very different case from one nobody looked for.
The records are read for the sequence. Whether pain, fever, falling urine output, leaking fluid or abnormal blood results were charted and acted on. When imaging was ordered, and when a urologist or colorectal surgeon was finally called.
A delay raises two questions. Was failing to recognise the injury a breach of the standard of care? And if so, what difference did the delay make? You have to show earlier recognition would have changed the outcome, not simply that it would have been better practice.
Was the surgery necessary in the first place?
A hysterectomy is not reversible. Where the claim is that the operation should never have been recommended, the test is again sections 58 and 59: what could reasonably be expected of a gynaecologist on the information available then. An operation is not negligent because another surgeon would have waited. It may be negligent if no competent practice supported doing it at all, or if the investigations that would have shown a less drastic option were never done.
Consent sits alongside that. The RANZCOG consent statement describes informed consent as providing "accurate and relevant information about the benefits, immediate and long-term risks, costs and alternatives to a proposed medical treatment, test or procedure". Alternatives are part of the required conversation.
We have written separately on known complications and on what a signed consent form establishes.
Can you claim if an ovary was removed without your agreement?
Possibly. RANZCOG's guideline on managing the adnexa at hysterectomy for benign disease, C-Gyn 25, reviewed the evidence on removing healthy ovaries and fallopian tubes. It recommends that the discussion with a patient under 50 cover the benefits and harms, including increased mortality at an older age. It records that there was no age group in which removing both ovaries improved overall survival, and says consent for hysterectomy with or without removal of the ovaries or tubes should follow the College's consent guidance.
Legally that becomes a question about warning rather than technique. Section 50 of the Wrongs Act 1958 (Vic) says a person who owes a duty to warn satisfies it by taking reasonable care in giving the warning. Section 60 then removes the peer professional opinion defence for warnings. A surgeon cannot answer a failure-to-warn allegation by saying that other surgeons would not have mentioned it either.
Where an organ was removed that you never agreed to lose, the claim may be framed differently again. Put that to a lawyer on your own facts.
What did Rogers v Whitaker decide?
It is the Australian case behind all of this. In Rogers v Whitaker (1992) 175 CLR 479 a patient who was almost blind in one eye asked her surgeon repeatedly what could go wrong with an operation on that eye. She was not warned about a rare complication in which surgery on one eye triggers inflammation in the other. It happened, and she lost most of the sight in her good eye.
The High Court held that the doctor had breached his duty. A risk is material if a reasonable person in the patient's position would be likely to attach significance to it, or if the doctor is or should be aware that this particular patient would. Rarity is not the test. What you asked about, and what mattered to you, is. You still have to show causation — that with the warning, you would have decided differently.
Does losing a uterus or an ovary meet the Victorian damages threshold?
Not automatically, and this surprises people. Under section 28LE of the Wrongs Act 1958 (Vic) you cannot recover damages for non-economic loss unless you have suffered a "significant injury". Section 28LF deems only three injuries significant without an assessment: loss of a foetus, psychiatric injury arising from the loss of a child around birth, and loss of a breast.
Loss of a uterus or an ovary is not on that list, so impairment has to be assessed by an approved medical practitioner under the A.M.A. Guides. As at 11 September 2026, the threshold level in section 28LB is impairment of more than 5 per cent for an injury other than a psychiatric or spinal injury, 10 per cent or more for a psychiatric injury, and 5 per cent or more for a spinal injury. That reflects version 130 of the Act, in force from 25 February 2026.
The threshold limits damages for non-economic loss only. Lost income, care and future medical costs are not gated by it. What compensation covers sets out the categories.
How long do you have to bring a claim in Victoria?
Section 27D of the Limitation of Actions Act 1958 (Vic) sets two periods, and the first to expire counts: three years from the date the cause of action is discoverable by you, or twelve years from the act or omission complained of. Section 27F ties discoverability to when you knew, or ought to have known, that the injury occurred, that it was caused by the defendant's fault, and that it was serious enough to justify an action.
These injuries are often discovered late. Requesting records does not pause the clock. Time limits for medical negligence claims covers how extensions are approached.
What should you ask for before anyone can assess this?
The operation record matters most, and it is rarely the document people are given. Ask for:
- the operation report and the anaesthetic record;
- the signed consent form and any pre-operative clinic notes;
- the pathology report on anything removed;
- imaging and the reports interpreting it, before and after surgery;
- nursing observations, fluid balance charts and post-operative notes;
- any referral to urology or colorectal surgery, or a second theatre visit; and
- the discharge summary and correspondence back to your GP.
How to get your medical records in Victoria explains which law applies and what they can charge.
Two Victorian systems may already have produced documents about you. Since 30 November 2022 health services have owed a legislative duty of candour: an apology, the facts of what happened and why, the service's response, and the steps being taken to prevent it recurring. Separately, public and private services must report sentinel events to Safer Care Victoria where a patient suffers serious harm.
How Clever Legal assesses a gynaecological surgery claim
Organising a surgical file is the expensive part of finding out whether a claim exists, and it is why claims like this one get declined before anyone reads the operation report closely. Our technology does that work, and our lawyers review the evidence and make every legal decision.
If another firm has already said no, that may have been a judgement about the cost of investigating rather than about your treatment. A previous rejection is not a finding. Public hospital claims and surgical error claims are covered separately.
Start a free assessment and you will be told what to request and from whom.
Common questions
Is damaging the ureter or bladder during a hysterectomy medical negligence?
Usually not by itself. The ureters and the bladder sit close to the uterus, and injury to them is a recognised risk of the operation. Under section 48 of the Wrongs Act 1958 (Vic) a foreseeable risk does not make a surgeon negligent unless a reasonable person in their position would have taken the precautions that were missed. What more often supports a claim is the response: whether the injury was looked for during the operation, recognised afterwards, and repaired promptly.
Can you claim if your ovaries were removed without your agreement?
It depends on what you were told beforehand and what you agreed to. RANZCOG guidance says consent for a hysterectomy with or without removal of the ovaries or fallopian tubes should follow the College's consent guidance, and that the discussion should cover the benefits and harms of removing healthy ovaries. If a material risk or a reasonable alternative was never explained, sections 50 and 60 of the Wrongs Act 1958 (Vic) apply, and the peer professional opinion defence does not.
Is the loss of a uterus or an ovary a significant injury under the Wrongs Act?
Not automatically. Section 28LF of the Wrongs Act 1958 (Vic) deems only three injuries significant without an assessment: loss of a foetus, psychiatric injury arising from the loss of a child around birth, and loss of a breast. Loss of a uterus or an ovary is not on that list, so impairment has to be assessed by an approved medical practitioner. As at 11 September 2026 the threshold level in section 28LB is impairment of more than 5 per cent for an injury other than a psychiatric or spinal injury.
What if the hospital says the injury was a known complication?
That is the start of the inquiry rather than the end of it. A recognised complication can happen without anyone being negligent, and it can also happen because of a departure from reasonable care. The records are what separate the two: how the anatomy was identified, whether the operation matched the surgeon's credentialled scope of practice, what was recorded in the hours after surgery, and how quickly the problem was recognised and repaired.
Sources
- Wrongs Act 1958 (Vic), sections 28LB, 28LE, 28LF, 48, 50, 58, 59 and 60
- Limitation of Actions Act 1958 (Vic), sections 27D and 27F
- Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
- RANZCOG, Managing the adnexa at the time of hysterectomy for benign gynaecological disease (C-Gyn 25)
- RANZCOG, Consent and provision of information to patients regarding proposed treatment (C-Gen 2)
- RANZCOG, Guidelines for performing gynaecological endoscopic procedures (C-Trg 2)
- Better Health Channel (Victorian Government), Hysterectomy
- Safer Care Victoria, Duty of candour resources for patients, families and their carers
- Safer Care Victoria, Sentinel events
This article provides general information and is not legal advice or medical advice. Medical negligence claims depend on their facts and are subject to strict time limits. Seek specific advice about your circumstances.