Medical errors are the third-leading cause of death in the United States, so it’s important for doctors to recommend or perform surgery only when it’s absolutely necessary. But that’s not always what happens. Some surgeries are unnecessary.
Can you sue for unnecessary surgery? Let’s look at a snapshot of the problem.
- Types of Unnecessary Surgeries
- The Negligence Standard for Suing for Unnecessary Surgery
- The Legal Process for Unnecessary Surgery Due to Negligence
- Intentional Unnecessary Surgery
- Unnecessary Surgery Does Not Automatically Mean You Can Sue
Types of Unnecessary Surgeries
Any type of surgery could potentially be unnecessary, but there are certain types of surgeries often performed when some medical professionals would say there is no need.
The World Health Organization says the rate for cesarean sections should not be higher than 10% to 15% of births. While the C-section rate in the U.S. was that low in the 1970s, it has steadily increased to 32%. Yes, one-third of babies here are born by C-section.
Whether or not you have a C-section depends in large part on what hospital you go to for delivery, as well as any expected birth complications. One hospital less than a mile away from another could have double the rate of C-sections, so it’s smart to do your research ahead of delivery.
Spinal fusion is a surgery that welds small bones in the spine together in an effort to stop back pain. Some clinical trials have demonstrated that spinal fusion does not lead to better patient outcomes than much less invasive therapies such as core-strengthening exercises, yet these surgeries continue to gain popularity.
Recently, the Ohio Bureau of Workers’ Compensation began requiring injured workers to complete 60 days of alternative treatment before considering spinal fusion surgery. Those with severe injuries, such as spinal fractures and tumors, are exempt from this rule.
Arthroscopic Partial Meniscectomy Knee Surgery
Arthroscopic partial meniscectomy knee surgery is extremely common, with about 700,000 procedures performed in the United States each year. However, a recently published trial revealed there was no benefit with these surgeries after a 12-month follow-up, as compared to sham (placebo) surgeries. Though this one is minimally invasive, any type of surgery carries a very real risk of problems during or after the procedure.
The Negligence Standard for Suing for Unnecessary Surgery
So, can you sue for unnecessary surgery in Ohio? The answer is, “it depends.” Doctors’ opinions may vary regarding whether you needed surgery in the first place, and just because a surgery is unsuccessful does not mean you can win a lawsuit for malpractice.
Normally, to win a medical malpractice claim, you need to show negligence and harm. Here are some ways you may be able to show negligence:
- A doctor immediately recommends surgery without considering or trying reasonable alternatives first;
- A doctor performs surgery based on a misdiagnosis, when another reasonable doctor would not have made that mistake;
- A doctor did not inform you of the risks and benefits of the surgery versus the risks of not having the surgery, so you were not able to give informed consent.
Of course, a medical error made during surgery, whether or not the surgery was unnecessary, may be considered negligent and grounds for a medical malpractice claim.
The Legal Process for Unnecessary Surgery Due to Negligence
If you believe your surgery was unnecessary and have suffered harm, you should immediately consult with an experienced Ohio medical malpractice attorney like Plevin & Gallucci.
Ohio Revised Code §2305.113 provides a statute of limitations for bringing a medical malpractice lawsuit in Ohio, which is normally one year from the time your cause of action occurred. If your lawyer thinks you have a case, they will need to obtain your medical records. Unless your case is obvious, such as a surgeon operating on the wrong leg, your attorney will have a medical expert witness analyze the records and give their opinion before proceeding.
Some of the factors the medical expert will consider include:
- The explanations and information the doctor gave you about what to expect from the surgery and its risks;
- Common textbook recommendations on treating the condition;
- The complication rate of the surgery;
- Your medical condition before the surgery;
- Problems you are having after the surgery;
- Your doctor’s experience in treating your condition; and
- Your doctor’s medical findings.
Let’s assume you have a painful condition and surgery is an option. If you have this particular surgery, there’s a 40% probability it will greatly improve your condition, a 35% chance it will worsen, and a 25% chance you’ll experience no change. You should have complete bed rest for six months following surgery — that means you can’t work or do anything you normally would do during that period.
Unless you are desperate and in a great deal of pain, in this imaginary scenario, there’s a good chance you will not opt to have the surgery, but you can only make that decision if you are completely informed. If your doctor did not explain to you the possible outcomes, including how much work you might miss, you probably have a good case for malpractice if the surgery fails. But if you were informed and there were no clearly better options, you may not have a case.
Intentional Unnecessary Surgery
There are those rare times when unethical doctors perform unnecessary surgeries for no other reason than money. In 2015, Dr. Harry Persaud, a cardiologist in Westlake near Cleveland, was sentenced to 20 years in prison for performing many unnecessary heart procedures and overbilling insurance companies, in which he made about $7 million. After learning of Persaud’s actions, former patients filed medical malpractice claims against him. This is an unusual case where the doctor violated his standard of care toward his patients intentionally rather than negligently.
Unnecessary Surgery Does Not Automatically Mean You Can Sue
One of the issues when discussing unnecessary surgery is determining exactly what is “unnecessary.” Doctors can rarely guarantee a result, and outcomes are different from patient to patient. Any time your doctor recommends surgery, it is always wise to get a second or even a third opinion.
If you suffered injuries after a surgical procedure and feel your surgery was unnecessary, you should immediately speak with a Cleveland medical malpractice attorney before the statute of limitations runs. For a free consultation about your legal rights in a medical malpractice claim, contact Plevin & Gallucci today.
You may also be interested in:
- New Report Reveals Shockingly High Number of Wrong or Late Medical Diagnoses
- Medical Malpractice in Ohio: What Damages Can I Recover?
- Medical Malpractice in Ohio: Burden of Proof and Filing Deadline
- Beyond Medical Bills: Lost Income and Lost Earning Capacity
- Ohio Drug Prescriptions: What Constitutes Medical Negligence?