Can a Doctor Be Sued for Performing Unnecessary Surgery?

Unnecessary surgery may give rise to a medical malpractice lawsuit, but only where the doctor's actions amounted to medical negligence.

Updated by , J.D. · University of San Francisco School of Law

A patient can potentially sue a doctor for performing an unnecessary surgical procedure. But it's important to point out that not all surgeries that turn out to be medically unnecessary will give rise to a viable medical malpractice lawsuit, especially when the best evidence comes via hindsight. The key is usually whether the doctor acted with medical negligence when advising the patient that surgery was the proper course of treatment.

When Is Surgery Medically Unnecessary?

A surgical procedure can ultimately prove to be unnecessary in a variety of situations, but those that most often lead to a finding of medical malpractice involve:

  • a procedure stemming from a misdiagnosis that amounted to medical negligence
  • surgeries that lack informed consent from the patient
  • the doctor operating on the wrong body part, or on the wrong patient, and
  • scenarios in which there is a financial incentive for the doctor to recommend or perform a surgery that is not medically necessary.

When applying medical malpractice law to the question of whether a surgical procedure was necessary, a court will instruct the jury not to rely on the concept of hindsight. For example, imagine a doctor examines a patient's broken arm via physical exam and x-ray, and determines that surgery is the best course of care in order for the bone to heal. The doctor completes the surgery, but the patient experiences infection and other complications, and later learns that less invasive medical treatments might have healed the bone just as effectively.

Is the doctor automatically liable for unnecessary surgery? The answer largely depends on whether the doctor provided treatment and made decisions in line with the appropriate medical standard of care under the circumstances. If the answer is no, then there is a possible medical malpractice case.

So how does an injured patient show (and how does a court decide) whether or not a doctor's conduct and decision-making measured up to this legal yardstick? It typically requires the use of one or more expert medical witnesses.

Using an Expert Witness to Prove Medical Negligence

To prove that a physician was negligent in recommending or ordering a surgery, a plaintiff's medical malpractice lawyer will consider all aspects of the plaintiff's course of care, and identify the proper medical expert witness to help build the case against the doctor. This expert (usually a current or former health care professional with expertise in the relevant medical field) will provide an opinion as to whether the decision to operate amounted to medical malpractice, based on:

  • a thorough examination of all records related to the patient's care
  • the plaintiff's medical condition before the procedure
  • the plaintiff's medical complaints/symptoms
  • the defendant's doctor's objective medical findings
  • the defendant doctor's experience in treating health problems or medical conditions similar to the plaintiff's
  • what the current state of medical research says concerning how to treat the plaintiff's condition
  • what the defendant doctor explained to the plaintiff about the surgery, and
  • known complications and risks associated with the surgery.

A medical expert witness might not always be crucial to the plaintiff's case, especially if the doctor made an obvious error, like operating on the wrong part of the body.

Learn more about establishing medical malpractice and how an expert medical witness helps prove the case.

Unnecessary Surgery Example

A patient complains of back pain, and the defendant surgeon proposes an operation to alleviate the discomfort. The surgeon tells the plaintiff that the operation has the following risk factors and complications:

  • a 50 percent chance that the patient's condition will improve
  • a 25 percent chance that the patient's condition will get worse, with risks ranging from death, to paralysis, to a minor increase in discomfort, and
  • a 25 percent chance that the patient's condition will remain largely unchanged.

The surgeon also advises that the surgery requires a three-month recovery period, during which the plaintiff will have to stay out of work.

Would a typical person have this surgery? Maybe not, but not all relevant facts are outlined here—including details about the plaintiff's prior medical treatment, the existence of other treatment options, and the amount of pain the plaintiff is in before the surgery.

But let's change the facts so that the doctor never gave the plaintiff a breakdown of the risks and the chances of success, as detailed above, when that information was available and a reasonably competent doctor would have provided it. Now the patient might have a valid case for medical malpractice based on an inability to give informed consent to the procedure. In other words, without having all the necessary facts and statistics as to potential outcomes, the patient wasn't truly able to decide for him or herself whether the surgery was necessary.

If you're thinking about taking legal action over harm caused by a potentially unnecessary surgical procedure, it may be time to discuss your situation with a lawyer and determine your best course of action. Use the contact tools on this page to reach out to a medical malpractice lawyer near you, or learn more about finding the right medical malpractice lawyer for you and your case.

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