If a doctor performs a surgery that was never discussed with patient, is this considered malpractice?

It has caused more problems. Keep in mind the proof that the doctor himself never discussed the operation is that the doctor could have cared less about the patient and never met her until an hour before the actual surgery. Now, this patient can barely walk.

Asked on November 13, 2015 under Malpractice Law, Massachusetts


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

The patient would have had to have signed a consent form prior to surgery.  If the patient is a minor, the parent or guardian would have had to have signed a consent form for the surgery to occur.
If no consent form was signed, a complaint should be filed with the state medical licensing board.  In addition, a medical malpractice lawsuit should be pursued.
Medical malpractice is negligence.  Negligence is the failure to exercise due care (that degree of care that a reasonable medical practitioner in the community would have exercised under the same or similar circumstances to prevent foreseeable harm).
Prior to filing a lawsuit for negligence against the doctor, it may be possible to settle the case with the doctor's malpractice insurance carrier.
The claim filed with the malpractice insurance carrier should include the medical bills, medical reports, and documentation of wage loss.
Compensation for the medical bills is straight reimbursement.  The medical reports will document the surgery and the result that the patient can "barely walk".  The medical reports will be used to determine compensation for pain and suffering, which is an amount in addition to the medical bills.  Compensation for wage loss is straight reimbursement.
If the case is settled with the doctor's malpractice insurance carrier, NO lawsuit is filed.
If you are dissatisfied with settlement offers from the malpractice insurance carrier, reject the settlement offers and file a lawsuit for negligence against the doctor.  If the case is NOT settled with the malpractice insurance carrier, the lawsuit for negligence against the doctor must be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.

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