“If your only tool’s a hammer, then everything looks like a nail.”
That sums up the practice approach of some surgeons, who are eager to operate on patients even when they don’t need a surgery.
One of the first questions we consider when investigating cases involving surgical errors or complications is whether the surgery was even indicated in the first place.
This is the precise issue presented in a class action lawsuit that was recently filed against two neurosurgeons. According to the lawsuit, the spine surgeons routinely performed unnecessary spine fusion surgeries that left patients with permanent neurologic damages and injuries.
From a medical malpractice perspective, the question of whether a surgery is indicated, or necessary, is important because of the issue of known risks.
Known risks are complications that can occur even with proper and appropriate medical and surgical care. Known risks are typically detailed in the informed consent paperwork that should be explained by the surgeon and signed by the patient before any procedure.
For example, a known risk of laparoscopic abdominal surgery is the accidental perforation or injury of an organ. During a hiatal hernia, cholecystectomy (gallbladder removal), or appendectomy (appendix removal) surgery, the surgeon may accidentally puncture the patient’s bowel or lacerate the liver or spleen. These are typically considered known risks and, thus, don’t represent a deviation from the standard of care or negligence on the part of the surgeon.
As a side note, the fact that a known risk injury occurs may not be negligent, but the failure to promptly identify and treat the accidental injury may be negligent. A delay in diagnosis and treatment of a bowel perforation, for example, can lead to a smoldering infection, sepsis, and even death.
When the patient should have no risk
When a surgeon performs an unnecessary surgery, the issue of known risks is off the table.
By performing an unneeded surgery, the surgeon violates the standard of care and is negligence. The real issue is that the patient should have been subjected to no risk at all, so if any complication or problem occurs during the surgery, including a known risk, then the surgeon can be held legally responsible in a medical malpractice claim.
According to the class-action lawsuit referenced earlier, a woman in her 50s went to see a defendant neurosurgeon for lower back pain. The neurosurgeon recommended surgery on her cervical spine (neck). During the unnecessary cervical spine surgery, the lawsuit alleges, the patient’s vocal cords were damaged and she cannot speak.
While this type of injury might normally be a known risk of a cervical spine surgery, if it was an unnecessary, unindicated surgery for a particular patient, then the surgeon could be held legally responsible for the patient’s surgical injuries and complications.
The lawsuit alleges that this behavior from the neurosurgeon wasn’t unique to one patient. A separate patient suffered operative complications that left him unable to work after he saw the defendant neurosurgeon for lower back pain but was taken to surgery for his cervical spine (neck).
Another plaintiff in the class action lawsuit alleged that a defendant spine surgeon didn’t consider or recommend non-surgical options before recommending surgery. This is also an important issue.
From the numerous spine surgery cases that we’ve handled with competent, qualified orthopedic surgery and neurosurgery experts, we know that the standard of care requires surgeons to proceed with surgery only when noninvasive or less-invasive approaches, including medications and physical therapy, are not expected to help the patient’s condition.
It will be interesting to monitor this ongoing litigation. In April, the hospital system where the spine surgeries were performed agreed to pay $22.7 million to resolve allegations that he defrauded the federal government for the allegedly unnecessary surgeries.
If you’ve been seriously injured because of surgical complications or problems in Texas, then contact a top-rated, experienced Texas medical malpractice lawyer for a free consultation about your potential case.