One common type of surgical error occurs before the operation is even scheduled. Like the Abraham Maslow saying “if you only have a hammer, you tend to see every problem as a nail,” surgeons are sometimes criticized for over-prescribing surgical fixes to medical problems. Poor patient selection may rise to the level of medical negligence if (a) the patient isn’t fully informed of the risks of the procedure; (b) the patient is not told that he/she will not likely benefit from the procedure; or (c) the patient is not a proper candidate for the procedure.
Typically, a patient is referred to a surgeon by another physician who believes that the patient may benefit from surgery. But this is not always the case. Sometimes, patients self-refer. Or, the surgeon may act as both the primary care provider and the surgeon. Irrespective of the mode of referral, the surgeon owes a duty to obtain the patient’s informed consent before performing a procedure.
Informed consent is obtained when the surgeon discusses the following with the patient: the proposed procedure, all other available treatment options, risks of the procedure and the likely benefits of the procedure. In Ohio, the patient must also be told who will be performing the operation. With some procedures, the surgeon should disclose whether he/she is inexperienced at the procedure since that fact alone can markedly increase the risk of complication. If the procedure is experimental, i.e., not yet proven to be safe and effective, that fact should also disclosed.
In addition, the surgeon must determine whether the patient is a proper candidate for surgery. This begins by information gathering, including preoperative testing. One type of medical malpractice occurs when a surgeon offers surgery even though the patient does not meet accepted indications for the procedure.
Why do surgeons sometimes subject patients to unnecessary surgeries? Two particular procedures, bariatric surgery and atrial fibrillation ablation, are so lucrative that the surgeon’s judgment in making a recommendation may become clouded. A recent study shows that patients undergoing bariatric surgery who are subject to rigorous selection criteria do much better (lower complication rate, higher success rate) than other patients.
We have also investigated cases where the surgeon skipped the informed consent process in the belief that a referring physician covered this discussion, even though the surgeon is best suited to have the discussion and has an inviolate duty to do so. Finally, a surgeon may rely on test results, such as radiology or a biopsy, that have been misread. While most operations go forward without complication, some do not. An experienced malpractice attorney will first look at whether the surgery should have been undertaken in the first place.