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medical malpractice - Unnecessary Surgery

Unnecessary Surgery

Many medical malpractice actions allege that a surgeon performed surgery that was unnecessary. Because patients are usually not in a position to judge the medical necessity of most surgical procedures, they often rely on the advice of a surgeon, often neglecting to obtain a second opinion. Some studies have estimated that up to 30 percent of elective surgeries are unnecessary. Some of the more common surgeries that result in claims of unnecessary surgery are:

  • Tonsillectomy
  • Appendectomy
  • Cataract removal
  • Low back surgery
  • Gallbladder removal
  • Hysterectomy
  • Caesarean section
  • Carpal tunnel surgery

Because the determination of whether a surgery was necessary is one of medical judgment, it is a difficult claim to prove. Experts can, however, analyze medical records and tests of a patient both before and after a claimed unnecessary surgery to determine its necessity. Once experts on each side testify as to the need for the surgery, it is for the jury to determine which expert is more believable.

To prevail in a medical malpractice case alleging unnecessary surgery, a plaintiff must show that performing the surgery in question, based on the medical evidence available to the surgeon, was a violation of the accepted standards of due care.  In one case in which it was found that carpal tunnel surgery was performed unnecessarily, the court based its findings on the fact that the surgeon failed to perform nerve function tests prior to operating on the plaintiff. Consequently, the court ruled that the performance of the surgery constituted medical malpractice. Likewise, another court found that a surgeon who performed a mastectomy without first performing a biopsy was liable for malpractice for the unnecessary surgery. In that case, post-operative tests revealed that there was no malignancy, thus confirming that the surgery was unnecessary.

Many people cite the rise in economic pressures on hospitals and physicians to schedule high priced procedures as a contributing factor to the rise in unnecessary surgeries. Others claim that patients are too impatient to wait for more conservative therapies to work and that the patients seek surgery as a first resort. To stem the problem of unnecessary surgery, health insurers are increasingly refusing to pre-authorize surgery unless a second opinion has been obtained.

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