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When Unnecessary Surgery, and Goes Beyond Acceptable “Judgment”

Steven E. North, Esq. and Laurence M. Deutsch, Esq.

Some judgments made by physicians are acceptable, but not all.

Semantically, almost everything a physician does may be informed by a degree of judgment. In New York an error of judgment by a physician is not sufficient cause to sustain a medical malpractice claim if the judgment was essentially a reasonable and accepted one. The flip side is that even if a physician claims he or she used his or her judgment to arrive at a course of treatment, that treatment can still be malpractice if in the final analysis it was neither reasonable nor the generally accepted standard.

Let’s say a patient goes to two physicians to determine whether surgery is indicated. If one believes surgery is a warranted and the other believes that surgery should be deferred, it does not mean, under ordinary circumstances, that one physician is committing medical malpractice. On the other hand, if a person is suffering from a condition for which the standard of care requires a particular course, and the physician chooses not to follow that course, it is not a legitimate defense for the doctor to say his judgment led him to stray from the standard of care.

Or, consider the recently reported case of an ophthalmologist who recommended surgery when there was no need for surgery to begin with. The physician bilked Medicare out of nearly $10 million by convincing patients they suffered from a retinal disorder requiring laser treatment, when in fact they had no such condition and the procedure performed was a bogus one. This amounts to a criminal assault or a civil battery and is the most egregious conduct that can be displayed by a doctor. Where the Hippocratic Oath provides that a doctor shall “do no harm,” such conduct is diametrically at odds with that fundamental tenet of medicine. Clearly, there is no acceptable degree of “judgment” involved if the surgeon is subjecting his or her patient to surgery simply to run up a surgiery bill.

Most surgeons will not intentionally push patients into bogus surgeries. But we have seen many in which a surgeon may have convinced a patient or even himself or herself that surgery was indicated when it was, objectively, unreasonable and not worth the risk to the patient. But it is not unheard of for a physician to expand his or her wallet by encouraging a surgery that could be deferred until more conservative management is tried. Sometimes a surgeon may opt to perform a more extensive or exotic procedure to enhance his or her reputation and to get bragging rights for having accomplished a difficult surgery.

While motivation may not be apparent, a physician’s conduct may be questionable if he or she jumps into risky procedures considered last resort approaches by most reputable physicians.
This is one reason we generally recommend that patients get a second opinion when contemplating surgery. Surgery carries with it many risks that can be completely unrelated to malpractice. While it saves many lives each day, it is wise when possible to avoid disrupting the integrity of the body with knives and instruments unless circumstances firmly require intervention.

Our practice has prosecuted numerous cases in which patients suffered catastrophic results from procedures which crossed the line from acceptable judgment into malpractice because the risk-benefit ratio may have favored the physician, not the patient.

Source: Medscape March 21, 2017

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