A surgical error may carry serious consequences. However, what happens when a patient develops a complication of surgery and later learns that the surgery was unnecessary in the first place? This scenario is more common than you may think. We have seen aggressive promotion of lucrative surgeries even when the indication to perform the surgery is lacking. Some examples are cardiac ablation surgery to treat atrial fibrillation (“A Fib”), thyroidectomy, and implantation of stents to treat coronary artery disease (“CAD”).
All surgery carries a risk of complications. Common complications include bleeding, infections and anesthesia-related complications. But complications can be life-threatening as well. Under Ohio law, when a surgical complication is deemed to be a “known and accepted” complication that can happen even in the absence of medical negligence, then it is often impossible to prove that the complication occurred as a result of negligence. In this instance, the caregivers involved in the procedure — doctors and nurses — would have to self-report that the complication occurred as result of negligence. That is not likely to happen.
However, when complications arise out of a surgery that was not necessary in the first place, a lawsuit for medical malpractice can be filed. I discussed this recently with a friend of mine after reading an article published in the New England Journal of Medicine recently. The article reported on two studies that showed that adding fusion surgery to decompression surgery in patients with spinal stenosis offers little to no benefit and is associated with longer hospital stays and increased costs. One of the known and accepted complications of fusion surgery is that it adds wear and tear to disk space on either side of the fused spine segments leading to pain and further surgery. If the fusion surgery was unnecessary in the first place, then the development of adjacent segment disease was presumably preventable by avoiding the unnecessary surgery.
One of the key tenets of medicine is “first do no harm.” When a surgeon subjects his/her patient to avoidable risks through unnecessary surgery, this valuable rule of patient safety has been violated. Any harm that results is compensable. In addition, depending on the facts, unnecessary surgery might even result in punitive damages, particularly where the surgery was promoted through fraudulent misrepresentations.
As an Ohio medical malpractice attorney, it is not uncommon to see healthcare providers aggressively promote procedures or medications, for profit, when safer alternatives exist. When a potential client asks us to review a medical chart after a surgical error results in harm. One question we always answer is whether the surgery was necessary in the first place.
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