Unnecessary Surgery: When the Doctor Gambles, Who Puts Up the Stakes?

unnecessary-surgery.jpg

The fundamental question for a surgeon who recommends an operation is whether the potential benefits outweigh the known risks.  Surgery carries risks. We all know that. The question is how badly does the person need surgery, and what are the risks (and severity of risks) of complications that can happen? When the risk of serious complications exceed the risk of potential benefits, common sense tells us that surgery is not a wise choice. So, why do doctors still recommend and order unnecessary surgeries in this day and age? It would be comforting to us to think that surgeons do this purely for altruistic reasons, based on a belief that hope should transcend fear. But medicine depends on evidence-based outcomes, not hope or fear. Sadly, the truth of why most unnecessary surgeries occur is not because of the surgeons' hope, nor the patient's fear; the reasons, as will be discussed, commonly have to do with surgeons' personal interests taking precedence over the patients' personal interests.

How Common are Unnecessary Surgeries?

More than half a century ago, the Director of the American College of Surgeons remarked that "the public would be shocked if it knew the amount of unnecessary surgery performed . . . ."[1]  By 1976, the American Medical Association (AMA) called for a congressional hearing on the subject, claiming there were around "2.4 million unnecessary operations performed [annually] on Americans at a cost of $3.9 billion and that 11,900 patients had died from unneeded operations."[2]  Fast-forward to the present, and it is a sad reality that even though unnecessary surgeries are considered "never events" (meaning they should never occur), over 11% of all surgeries are felt to be unnecessary. In short, unnecessary surgeries are still being performed every day our country.[3]   

When is Surgery Unnecessary?

Unnecessary surgery has been defined as "any surgical intervention that is either not needed, not indicated, or not in the patient's best interest when weighed against other available options, including conservative measures."[4]   

What are the Most Common Unnecessary Surgeries?

The most common unneeded operations each year in the U.S. are the following[5]:

  • heart stents
  • pacemakers
  • back (spine) surgeries
  • knee and hip surgeries
  • hysterectomies
  • radical prostatectomy
  • gallbladder removal
  • Cesarean sections
  • tonsillectomies

What is the Harm from Unnecessary Surgeries?

If the patient recovers well after surgery, and his or her insurance company does not catch the unnecessary surgery error, it may never come to light. And, the surgeon who performed the operation can always claim, "no harm, no foul" even if it is later discovered. But when something goes wrong, as in the thousands of cases where patients die, are injured, or are made to suffer for their entire lives,[6] the story is far different. In lawsuits involving surgery where a medical complication has occurred, surgeons and their lawyers are quick to disclaim responsibility for the risks of surgery. They often point out that the patient signed a consent form beforehand, and therefore he/she knew of the risks of complications that could occur with surgery but chose to have it anyway.

Yet when the surgery is alleged to be unnecessary, surgeons and their lawyers may instead claim that the complication could have happened even without surgery, or (in cases where only minor injury occurred) that the complication was not that significant. So, excuses for unnecessary surgery sometimes focus on a claimed lack of harm rather than the risks the patient faced by having the surgery. In other words, when the patient gambles (by having surgery) and there is a bad outcome, the defense is that the patient knew what was at stake. But when the doctor gambles (by recommending and performing an unnecessary surgery), the argument may morph into one that claims the risk (of the bet) was small, and there was not that much potential harm at stake. There are always risks with surgery, however, and this is especially true with any significant degree of anesthesia for surgery. Death, stroke, paralysis, bleeding, infection, are just some of the risks the patient may face, not to mention the costs associated with the procedure. Unnecessary surgeries are harmful for all these reasons even in patients who do not wind up severely injured or dead as a result.

Why are Unnecessary Surgeries Performed?

Surgeons themselves have stated 2 primary reasons that unneeded surgeries continue to be performed:

"1. We perform surgery because we have been trained to do so and because 'we have always done it this way' or we simply do not know any better‚ [and]

 2. We are incentivized to perform surgical procedures, either for financial gain, renown, or both."[7]

To understand both of these personal incentives for the surgeon, they should be considered separately.

Financial Incentives

StethoscopeBy virtue of the opioid epidemic, the public is well aware that healthcare fraud occurs and is a problem for our country. The last decade has witnessed many headlines of lawsuit allegations, investigations, guilty pleas, or convictions concerning this problem.[8]  There are a number of reasons that drive medical overtreatment in the United States, and the degree of the problem varies by geographic region.[9]  Physicians' financial interests in our U.S. fee-for-service model are only a part of the problem.  A profit-driven surgeon agenda is likewise a problem, since over 70% of U.S. doctors themselves believe that other doctors "are more likely to perform unnecessary procedures when they profit from them."[10]  Some doctors acknowledge the inherent conflict of interest that occurs because surgeons "are paid approximately ten times more money to perform surgery than to manage your problem conservatively."[11]  So, financial pressures can lead to unnecessary surgery. As one doctor quotes his residency professor, "[t]here is nothing more dangerous than a surgeon with an open operating room and a mortgage to pay."[12]

In addition to these factors, some surgeons have consulting or speaking agreements with medical device manufacturers, and it has been pointed out that "[s]ometimes the same doctors have Hip and knee replacementsperformed a record number of implants for that company."[13]  In addition to surgeons receiving consultant fees, such agreements often result in payments to them for trips, travel, lodging, food, honoraria, gifts, continuing education, etc.[14]  The potential for a conflict of interest in this setting can thus lead to a surgeon using a particular type of surgical device, even when it is not the right one for the patient. As one advocate against profit-driven health care has suggested, "[y]ou kind of don't want your surgeon to be in bed with the device industry."[15] 

There is a known "symbiotic" relationship between medical device manufacturers and many surgeons, in that surgeons often contribute work and intellectual capital to a device-maker which, in turn, provides those surgeons with an important source of revenue.[16]  However, problems arise when surgeons don't disclose those potential conflicts in studies they publish about a device[17] or, even worse, when surgeons decide to perform a given surgery due to their relationship with the device manufacturer instead on what is in the patient's best interests.  Some device-makers have even paid millions of dollars to settle cases involving allegations of improper payments to surgeons.[18]    

Additionally, the potential conflicts of interest noted above don't end with the surgeon.  Many teaching hospitals have come under scrutiny for accepting from medical device manufacturuers the types of revenue noted above.[19]  Also, many surgeons are owners or co-owners of ambulatory surgical centers. While doctor-ownership of surgery centers is permissible,[20] and can arguably provide more focused or flexible procedures for many patients,[21] this ownership model has also been reported to create conflicts of interest, sometimes affecting surgical decisions and leading to a higher volume of surgeries.[22]  It should also be noted that private insurers and/or the Centers for Medicare and Medicaid Services (CMS), pay surgeons more for certain types of surgeries when they are done through "open" (full) surgical means rather than minimally invasive surgery (laparoscopy), even though the less invasive operation may be safer.[23]  This practice is another financial incentive for surgeons to perform more extensive surgery than is necessary, even when these types of surgeries are medically justified.  

Professional Incentives

There are also professional incentives that have the potential to drive surgeons toward unnecessary procedures. This can include situations where hospital administrators put pressure onDaVinci Robotic Surgery surgeons to generate more money by performing more procedures,[24] or where hospitals or hospital systems have purchased very expensive surgical equipment or devices and need to justify their use. Likewise, in order for surgeons to be able to perform newer or more technically complex surgical procedures, their hospitals may often require that they perform a minimum number of these procedures every year or two years. The minimum case-volume of such procedures may be imposed by a surgeon's hospital to demonstrate ongoing competence in the procedure, since non-use of these operations can affect how well they are performed.

The American College of Surgeons, for example, notes that "[f]or some complex procedures, published evidence suggests that a high case volume is associated with improved surgical outcomes."[25]  This is because surgical skills in performing various procedures are subject to decay.[26]  So, for surgeons to continue to receive professional privileges at a hospital (reappointment or re-credentialing) to perform these procedures, they may have to meet an annual or bi-annual quota of them.[27]  The surgeon's need to not lose these skills, and the need to be able to continue to perform the procedure in a hospital, can therefore be another professional incentive why a surgeon may be motivated to perform a certain surgery more often or frequently than it is required.

Contact Us

The lawyer who is experienced in handling unnecessary surgery cases will know and understand these subjects and the important aspects of the surgery and medical information. He or she will be able to work with qualified expert witnesses in surgery and surgical subspecialties to determine and prove how and why it occurred, and how it should have been prevented. The attorneys at Clore Law Group have significant experience and expertise with handling unnecessary surgery error cases to successful resolution. If you or a loved one experienced a surgical error and harm, you can email us at Team@clorelaw.com, or call us Toll-Free at 1-800-610-2546 for a free and confidential consultation.

Sources