Unnecessary surgery occurs when a surgeon performs a procedure on a patient that the patient does not want or need. In other words, the surgery is not being done to treat an injury or illness, or to improve the patient’s well-being. Instead, these procedures are typically requested for cosmetic reasons like plastic surgery or may be prescribed as a treatment option that provides no additional benefits to the patient (e.g., bypass surgery).
A patient who has suffered injury, harm, or death as a result of undergoing an unnecessary surgical procedure may be able to sue the party responsible for damages. Such legal actions are sometimes referred to as “unnecessary surgery cases”. Unnecessary surgery cases often involve claims that serve as the basis to a personal injury or medical malpractice lawsuit.
Plaintiffs who prevail in unnecessary surgery cases can potentially recover economic, non-economic, and possibly punitive damages. However, it should be noted that not all unnecessary surgery procedures are legally actionable. For instance, a plaintiff must be able to prove that a surgeon deviated from the applicable standard duty of care and also that they suffered actual damages.
Is Unnecessary Surgery the Same as a Surgical Error?
A “surgical error” is a general term used to describe any mistakes that are made during a surgical procedure. Given its broad scope, the term may apply to a number of different scenarios, such as when a surgeon does not receive informed consent from a patient prior to an operation or fails to provide a patient with sufficient information about the risks and consequences associated with a certain procedure.
Unnecessary surgery, on the other hand, is a type of surgical error. Thus, while an unnecessary surgery is a kind of surgical error, a surgical error is not necessarily caused by an unnecessary surgery (though it could be). To keep the two phrases separate, think of surgical errors as the main heading for medical mistakes and unnecessary operations as a subheading beneath it.
What Are Some Common Unnecessary Surgeries?
As previously mentioned, both plastic surgery and bypass surgery are two types of unnecessary procedures. Some other common examples of unnecessary surgeries include:
- Hysterectomies;
- Heartburn surgeries;
- Caesarean sections;
- Irritable bowel syndrome surgeries;
- Gastric bypass;
- Liposuction; and
- Pacemaker implants.
How Can I Prove Medical Negligence?
In order to prevail, a plaintiff to an unnecessary surgery lawsuit will usually have to prove that their injuries were caused by medical negligence. Negligence and/or medical negligence is often the basis of many personal injury lawsuits as well as the primary foundation of all medical malpractice lawsuits. As discussed above, unnecessary surgery claims are generally brought under one of those two types of lawsuits.
Unnecessary surgery claims are more commonly associated with medical malpractice lawsuits, which means a plaintiff will have to show that medical negligence existed if they wish to recover damages in such cases. There are several elements that a plaintiff must prove before the harmful conduct can be declared as medical negligence.
The list below contains the elements required to prove medical negligence, which includes:
- First, it must be shown that the surgeon or other medical staff owed the patient a duty to act reasonably and in accordance with the medical professional standard of care in overseeing the patient’s health (e.g., diagnosing, treating, managing, etc.).
- Next, the plaintiff must prove that the medical professional breached this duty and thus failed to meet the level of care required. This usually happens when a physician is negligent in managing some aspect of the patient’s health or treatment.
- The third element involves proving two prongs. The medical professional’s negligent conduct must be both the actual and the proximate cause of the patient’s injury. This means that the plaintiff must prove that the negligent actor was the direct cause of their injuries and also that the actor could foresee that behaving in such a careless manner could lead to that sort of injury.
- Finally, the plaintiff must prove that their injury caused actual damages. In other words, the plaintiff must be able to show that they were harmed in a way that cost them financially as well (e.g., medical bills, treatment expenses, etc.).
All of the above elements should be supported by strong evidence, such as the plaintiff’s medical records, hospital bills, documents that demonstrate there was a relationship between the plaintiff and the surgeon, expert witness testimony, and various other items that can help prove the plaintiff’s claim.
Are there any Legal Consequences Associated with Unnecessary Medical Procedure Injuries?
Doctors, surgeons, nurses, and/or other medical personnel may face certain legal consequences if they are successfully sued for injuries relating to an unnecessary surgical procedure.
For instance, they could potentially have their medical licenses revoked or suspended, or a court may order a particularly negligent facility to cease all operations. A court may also order a medical facility to create, update, or change its existing health and safety policies as well.
In addition, successful claimants will be able to recover damages from respondents. Some remedies and/or unnecessary surgery compensation that may be available include:
Economic damages: Economic damages, also known as special damages, compensate or reimburse a plaintiff for out-of-pocket costs that were incurred as a result of their injury. Thus, economic damages will typically cover costs, such as hospital bills, general medical expenses, pharmacy costs, physical therapy bills, and so forth.
Non-economic damages: Non-economic or general damages are used to compensate a plaintiff for injuries that are difficult to quantify like loss of enjoyment of life, pain and suffering, mental anxiety, emotional distress, body and/or facial disfigurement, and reputational damages.
Punitive damages awards: A court may issue a punitive damages award in instances where a medical professional behaved in a manner that is found to be outrageous or extreme. However, only some states permit punitive damages awards. Also, in the states that do recognize them, many have placed limits on the amount that a court can award.
Finally, if an unnecessary surgery causes a patient’s death, the family of the deceased patient may be able to bring a wrongful death lawsuit against the negligent actor and could potentially recover monetary damages. Also, if the family member suing is the deceased patient’s spouse, they may be awarded damages for loss of consortium.
Do I Need a Lawyer for Help with an Unnecessary Medical Procedure Lawsuit?
Unnecessary medical procedure lawsuits can be difficult to resolve without the help of a lawyer. Experienced unnecessary surgery lawyers will already be familiar with the types of legal issues that arise in these cases, can interpret relevant complex laws, will understand highly technical language or medical jargon, and will know which legal arguments to make for commonly cited claims.
Therefore, if you are involved in an unnecessary medical procedure lawsuit, it may be in your best interest to contact a local personal injury lawyer as soon as possible. Your lawyer will be able to determine whether you have enough evidence to take legal action. If so, they can help you file your claim, prepare your case, answer any questions you may have throughout the process, and can provide representation in court.
In the event of a settlement, your lawyer can also negotiate on your behalf for a fair and favorable outcome and can make sure that you receive any damages you are owed as a result of your suffering.
Jose Rivera
Managing Editor
Editor
Last Updated: Dec 11, 2020
