Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 13, 2020

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Unless there was no legitimate medical need for the operation, consent was procured by fraud, or the procedure departed from standard medical practice, a patient who undergoes unnecessary surgery will have difficulty filing a successful malpractice lawsuit.

Taking legal action against a medical professional for malpractice is challenging under the best of circumstances, and state laws, as well as state standards of practice, vary greatly. In the case of surgery that is later deemed unnecessary, there are elements to consider before pursuing a lawsuit.

Even Competent Doctors May Decide on Surgery 

Often, doctors are forced to make decisions and recommendations with limited information and under severe time restraints. The choice of treatment is – in most cases – a judgment call and competent physicians can reasonably disagree on a course of action. Often, there is no right or wrong with medical treatment – there are simply options. A doctor uses his or her professional judgment when recommending surgery as a method of treatment.

It is incumbent upon the patient to weigh the various options and choose to undergo surgery or not. When a patient gives his informed consent, he has consciously decided to proceed with surgery based upon a doctor’s recommendation. If it appears in retrospect that the surgery was unnecessary, this does not automatically indicate that a doctor committed malpractice. 

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In Some Cases It May Be Negligence

The critical question of liability will focus on whether an operating surgeon performed negligently or did not conform to the local standard of practice. Certainly, there are situations where it would be negligent to perform unnecessary surgery.

For example, if a doctor misreads an X-ray and mistakenly performs an amputation, the surgery was both unnecessary and harmful. But for the doctor’s negligent interpretation of the X-ray, the surgery would not have occurred. As a result, the doctor has breached the standard of care by amputating a limb that did not need to be amputated. This presents a very strong case that the doctor committed malpractice.

On the other hand, if a doctor mistakenly identifies tonsillitis and proceeds to unnecessarily remove a patient’s tonsils, the situation becomes more complex. If the mistake can be considered reasonable, or if another doctor would have made the same error and preceded accordingly, then the case for a medical malpractice claim becomes very weak. There is no real harm in having one’s tonsils removed. As long as the procedure was performed correctly, the fact that it was unnecessary would not automatically support claims of malpractice.

Whether or not a patient has a solid malpractice case depends on the facts of the particular situation. Just because a surgery is later found to be unnecessary does not automatically mean it resulted from malpractice. Unnecessary surgeries occur every day, and recommendations regarding surgery can change from minute to minute. Unless a patient can prove a lack of consent or violations of the local standards, and unless actual harm results from the unnecessary surgery, a case will likely not succeed in court.