Is it malpractice if a hospital refuses to provide surgery to a person with a degenerative spinal condition but only offers opoids instead?

UPDATED: Oct 1, 2022

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Is it malpractice if a hospital refuses to provide surgery to a person with a degenerative spinal condition but only offers opoids instead?

My aunt is basically a fit and active woman of 78. However, she has severe osteoarthris of the spine. About 4 months ago, she was in a car accident and her condition has worsened in the past weeks to the point where she is unable to walk and is screaming in pain. We took her to the ER of a noted hospital for surgery. They admitted her but refuse to discuss surgery. They only talk about giving her

drugs, which aren’t working for her. Can they deny surgery based on her level of insurance reimbursement? The doctor’s refusal to discuss her case or even to let her see the orthopedic team seems very suspicious. What can she do?

Asked on May 6, 2018 under Malpractice Law, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

She can go to a different hospital, clinic, or doctor. There is no law guarantying you the right to get the procedure you want from any given hospital or doctor, and hospitals or doctors are not required to treat patients (other than an ER providing emergency treatment to save a life, stabilize a patient, etc.). Medical care providers may refuse to treat if they either 1) feel that it is not in the patient's best interest (which is why they will sometimes not perform surgery on the elderly, balancing the risks and consequences of surgery vs. the patient's health and what the improvement in life quality or expectancy might be);, or 2) there is a concern about the payment or compensation (either how much, or whether it will be made) they will receive for the procedure. Doctor's, hospitals, etc. are fundamentally work (provide medical care) to be paid, and so concern about the level of or likelihood of payment is valid grounds to refuse treatment. But nothing says your aunt is limited to this hospital: she can see is someone else will do the procedure, or she can pay out of pocket on an elective basis.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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