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Can You Sue for Unnecessary Surgical Procedures and Tests?

Written by Berkowitz

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Malpractice Lawyers Handling Unnecessary Procedures in Connecticut

Seeking compensation for unnecessary surgeries is much more complex than other types of medical malpractice. Often, the plaintiff must prove that there was no legitimate need for the operation, consent was obtained through fraud, or the procedure did not follow standard acceptable medical practices.

While that sounds simple, it is difficult. If you suspect that your medical procedure, test, or surgery was unnecessary, you will want to speak with surgical malpractice attorney.

Is an Unnecessary Surgery Malpractice?

Not always.

While there are numerous instances where physicians will conduct surgeries that are unnecessary, only a handful are due to negligence. Sometimes, the procedure is more aggressive than others would recommend, but that does not mean it was negligent to recommend it.

For example, say a physician could have ordered laboratory tests to diagnose a patient’s frequent stomach pains, but instead opts to skip the laboratory testing and use an endoscopy. While that is the more in-depth procedure, and another physician might have performed laboratory testing first, ordering that test is not necessarily negligent. Why? Because the physician still has a justification for doing the more invasive procedure.

If, however, that physician had no basis for the endoscopy, or opted for exploratory surgery instead of performing other diagnostic tests first, then there may be a basis for unnecessary procedures.

Competent Physicians Can Opt for Surgery

A physician is often forced to make a recommendation with limited information from – and little time to spend with – the patient. Therefore, the choice to do an invasive procedure, test, or surgery is based on the physician’s years of experience and professional judgment.

Sometimes, there is no wrong or right medical treatment; instead, there are options for the physician to select from. If a physician opts for surgery based on professional judgment, that might be hard to fight in court.

h2>The Rule of Informed Consent

One exception is that of informed consent. Even if a physician decides that a surgery or invasive test is better, that physician is required to obtain a patient’s informed consent. Informed consent is much more in-depth than handing over a consent form. The patient must:

  • Understand the risks and benefits of the procedure;
  • Know the diagnosis or suspected diagnosis;
  • Know all potential outcomes from the test;
  • Understand how the test or surgery will work;
  • Know about any other options for tests or surgeries, and the risks or benefits of doing those over the proposed procedure.

If a physician does not obtain true informed consent, then a justified procedure could still be grounds for a malpractice claim.

Once a patient provides informed consent, it means that he or she has consciously accepted the risks and benefits of that procedure, unnecessary or not, and is giving the physician permission to do the procedure.

10 to 20 Percent of Surgeries Are Unnecessary

Unfortunately, there are a large majority of surgeries in the United States that are deemed unnecessary. There was one case of a cardiologist who would perform unnecessary procedures. Doctor Mehmood Patel from Louisiana was eventually put under investigation for ordering numerous unnecessary and risky cardiac surgeries. One patient was forced to get a pacemaker, when it was later discovered that he only needed blood pressure medication.

USA Today reviewed numerous government records and found that thousands of patients are sent to the operating room without any justifiable reason. Some were victims of physicians who wanted to pad their pockets, while sometimes it was an issue of incompetence and experience.

A large majority of the unnecessary procedures occurred because the facts did not warrant a surgery, or the physician was too inexperienced to use a non-surgical option. They estimated that 10 to 20 percent of surgeries in the U.S. are unnecessary. Just some of the procedures included:

  • Stents
  • Hysterectomies
  • C-Sections
  • Knee Replacements
  • Spinal Surgeries
  • Pacemaker Implants
  • Angioplasties

Unnecessary Procedures Cost Patients

Unnecessary tests and surgical procedures are not just costly for the insurer; they are costly for the patient. Say, for example, that a patient receives an unnecessary surgery. He or she might have great insurance, but will still have a deductible and responsibility portion, which could mean thousands out of pocket. Also, the patient must take time off work to recover from the surgery. If he or she does not have adequate sick leave, the patient is taking leave without pay.

When surgery is unnecessary, these costs are burdensome to the patient, but they also affect other patients and taxpayers – especially when government-funded insurance programs are paying for unnecessary tests and surgeries.

Most Patients Are Unaware that They Are Victims

Most patients are unaware that they were victims of unnecessary procedures or surgeries. As such, estimates for the number of unnecessary procedures each year is likely much higher. After all, a patient may have no symptoms after the surgery, so he or she would have no reason to suspect something is wrong.

Say that a patient receives an unnecessary spinal fusion. While he or she no longer has back pain or headaches, that same result could have been achieved through physical therapy. So, he or she endured an unnecessary, risky procedure – along with the costs – for nothing.

In a 2011 study in the Journal of the American Medical Association (JAMA), researchers examined 112,000 patient records. The patients all had received implantable cardioverter-defibrillator (ICD), but researchers found that for 22.5 percent of those patients, there was no medical justification for ordering such a procedure.

The Power of a Second Opinion

As a patient, you are your advocate. If you ever suspect that a physician’s recommendation is inaccurate, or if you feel surgery is too extreme for your condition, then do not hesitate to have a second opinion. Some doctors are more aggressive with treatment plans, but not necessarily in a negligent manner. Other times, physicians have no medical basis for ordering such invasive procedures; therefore, you want to ensure that the decision is justified before enduring the cost and recovery time.

What About Unnecessary Medical Tests?

Unfortunately, some hospitals and physicians use unnecessary tests for financial gain. As the patient, you are the victim of these acts. Most patients do not realize they are victims, because they rely on their physicians to treat them and make them feel better. A physician ordering a test may appear helpful, and a patient may not question the doctor. When tests are ordered without any reason other than to bill your health insurance, you have rights.

The Risk of Unnecessary Testing

There are risks to unnecessary testing. While most laboratory tests are not hazardous to your health or safety, any procedure or test that is conducted unnecessarily could affect your health.

After all, if a physician is testing for a condition you do not have, he or she is wasting valuable time. That time could have been spent on the right diagnosis and treatment. Numerous blood tests and colonoscopies increase your risks for infection.

What Tests Are Most Often Ordered Unnecessarily?

There are some diagnostic tests ordered more frequently than others, and those that are reported as unnecessary include:

  • X-rays
  • CT Scans
  • Heart Screenings
  • Imaging Scans for Headaches
  • Colonoscopies
  • Endoscopies
  • Cultures
  • PAP Smears
  • CT and MRI Scans
  • Ultrasounds
  • Blood Work
  • Breast Examinations

Some of these procedures take time out of a patient’s day, which may result in hours or days missed from work. Some of these procedures are also painful for the patient.

Why Are Unnecessary Tests Becoming So Common?

The reasons behind the unnecessary test ordering depends on the physician or hospital, but most of the time they are done for financial gain. Sometimes, the physician is too rushed to do a simpler examination, so he or she relies on costly, unnecessary tests to do the work.

Some reasons why tests are performed without reason in the United States include:

  • The hospital needs more cash flow;
  • The physician is looking for opportunities to increase billing to the insurance company;
  • The physician relies on all tests, because he or she lacks diagnostic skills;
  • The hospital has limited time; therefore, they test instead of examining patients.

Can You Receive Compensation for Unnecessary Testing or Procedures?

If you were forced to do an unnecessary test or procedure, you could be eligible for compensation. Meeting with a Connecticut medical malpractice attorney is best, so that you can explore what type of compensation you might be entitled to.

Some things that may qualify for compensation include:

  • Pain and Suffering – Unnecessary procedures, especially surgical procedures, can lead to emotional distress and severe physical pain. You may also suffer emotional trauma from unnecessary tests, because you assume something is seriously wrong when it is not.
  • Medical Costs – Whether you paid out of pocket or your insurance company paid the bill, there were medical costs associated with that unnecessary test or procedure. Your attorney can seek compensation for the costs, including what your insurance company covered.
  • Lost Wages – If you missed work to recover from an unnecessary surgery or to take multiple tests that were not necessary, you could claim your lost wages.
  • Lost Earning Capacity – A person can easily become disabled from a surgical procedure or test that went wrong. Therefore, if you suffered permanent injuries from the unnecessary procedure, you may be entitled to compensation for future wages that you would have earned.
  • Wrongful Death – If a loved one dies from an unnecessary procedure, you may be entitled to file a wrongful death suit against the physician or hospital responsible.

After an unnecessary surgery or procedure, it is in your best interest to speak with an attorney. Physicians are held to a higher standard of care, and they are required by law to follow that standard any time they order a test or procedure for their patients. Furthermore, doctors should never make decisions based solely on financial gain.

After your injury or unnecessary suffering, you need to speak with an attorney.

Contact Berkowitz and Hanna LLC today to schedule a no-obligation case evaluation. Call us or contact us online to get started.