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When Is Unnecessary Surgery a Case of Malpractice?

The problem of unnecessary surgeries has been publicized since at least the 1950s. Unnecessary surgeries are those that are not needed, indicated, or in the patient’s best interest when compared to other options. While this has been a consistent problem in the U.S., it can be difficult to establish malpractice. Medical expert witnesses are essential in such claims to prove or disprove negligence.

As noted in a study published in the Journal of Patient Safety in Surgery, while medications are subject to extensive testing prior to approval, surgical procedures do not receive the same level of consideration. As a result, some surgeries are still performed even when evidence-based studies show better results from non-surgical treatments. They may also be performed before non-surgical options have been adequately explored or based on errant or non-surgical diagnoses. Although any of these situations may result in allegations of unnecessary surgery, they are all grounded in different theories of negligence, and none assures a meritorious claim of malpractice. As with any malpractice claim, unnecessary surgery claims are fact-specific. A course of treatment for one patient may not be the best option for another, or a particular treatment which is uncommon may still be appropriate if it is performed by a “respectable minority” of reasonable practitioners. Since surgeons are held to a standard of reasonable care, evidence must demonstrate whether a reasonable practitioner would have performed the surgical treatment under the same or similar circumstances.

Actionable claims stemming from unnecessary surgery are grounded in standard theories of negligence (surgical malpractice, fraud, misrepresentation, breach of informed consent), though there are two unique twists. The first is that even when harm does not result from surgical negligence, the patient may allege that they were harmed (physically, emotionally, financially) by undergoing the surgery itself. The second caveat is that any surgical harm – even a common complication not arising from malpractice – may still be actionable if the patient argues that they would not have suffered any maloccurrence had they not been in the operating room in the first place.

In each of these situations, expert witnesses are needed by both plaintiff and defense to conclude whether the surgeon’s conduct met the appropriate standard of care in light of the patient’s medical history and other relevant facts. Experts in the specific type of surgery that was performed are essential. Since unnecessary surgery claims are most prevalent in cardiac, gynecologic, and spine surgery, experts in these fields are in highest demand. For example, a Cardiothoracic Surgery expert may provide invaluable insight regarding the treatment of heart disease, an expert in Gynecology may shed light on allegations of unnecessary hysterectomy and Cesarean section (C-section), and a qualified Spine Surgery expert can address unnecessary operations on the spine. Harm and causation also must be proven for malpractice, and this includes injuries resulting from the surgery, such as the short and long-term effects on the plaintiff’s prognosis. Expert witnesses can readily substantiate or refute damages claims.

Medical malpractice claims based on unnecessary surgery are challenging and each case is unique. If you are involved in a malpractice case involving unnecessary surgery, Elite Medical Experts can help you identify and secure top tier university-based healthcare experts for all types of medical litigation and complex consulting matters. We screen experts based upon case-specific expertise, credentials, geography, testimony experience, interest, availability, and any other case preference. Contact us today for a consultation.

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