How Do You Know a Doctor Performed An Unnecessary Surgery?

On Behalf of | Jan 19, 2014 | Medical Malpractice


Medical Malpractice claims arising from unnecessary medical procedures are on the rise. Why? the answer is simple; MONEY.

The medicare and private health insurance reimbursement for certain procures make these procedures very lucrative to perform.

As reported in the New York Times, It matters not if the procedure is big or small, learned in a decade of training or a weeklong course. In fact, minor procedures typically offer the best return on investment: A cardiac surgeon can perform only a couple of bypass operations a day, but other specialists can perform a dozen procedures in that time span. That math explains why the incomes of dermatologists, gastroenterologists and oncologists rose 50 percent or more between 1995 and 2012.

Given the lucrative reimbursement rate for many out patient procedures, (where most doctor’s also have an interest in said facility) there is no wonder malpractice claims for these procedures are on the rise. We are currently representing a woman who underwent an unnecessary knee replacement surgery. To that end, the doctor performed the procedure without first trying any non-invasive treatment. In addition, the MRI that was taken prior to surgery did not reveal sufficient arthritic changes to warrant a knee replacement. To add insult to injury, the doctor took less than 20 minutes to perform the total knee replacement. It is no wonder the patient had a bad result from the unnecessary surgery, and then had to undergo a second knee replacement surgery to correct the first unnecessary one. Of course the cost of these procedures is often borne by the US tax payers courtesy of medicare.

Medicare’s valuation of physicians’ services is based on a complex algorithm that is intended to take into account the time and skill required to perform a medical task, with an adjustment made for a specialty’s malpractice rates. Many insurers follow Medicare’s lead, often paying anywhere from 80 percent to 200 percent of the Medicare fee. But “time and skill” are easier to quantify for procedures than continuing patient management. And, experts say, Medicare has not reduced payments for many procedures that now take far less time than when they were invented, because of improvements in efficiency or technology.

Unfortunately, renegotiating payments involves a highly contentious process that plays out behind closed doors at the American Medical Association’s Relative Value Scale Update Committee, which consists of doctors representing 26 medical disciplines who advise Medicare.

In Medicare’s reimbursement schedule, malpractice rates are a factor that is considered in setting the rate. This is a circular argument in so much doctor’s are actually rewarded if a procedure has a higher rate of malpractice. Perhaps a better idea would be to reduce the reimbursement rate for specialties and procedures that carry such a high rate of malpractice, unless and until less invasive procedures have been exhausted. For example in our case involving knee replacement surgery, the doctor should have tried a course of physical therapy, injections, etc., and if all else failed, then proceed with surgery. As a brief aside this follows on heels of a study that was published last month in The New England Journal of Medicine that called into question the efficacy of arthroscopic surgery to repair a torn meniscus.

I am by no means suggesting that most doctor practice medicine in this fashion. In fact, I would suggest otherwise. However, when looking at these cases from a medical malpractice perspective, just ask whether the doctor exhausted less invasive procures first, the cost of the proposed surgery, and whether the doctor has a financial interest in the facility used for the procure. After getting answers to these questions, you can be in a better position to determine whether the surgery is necessary or not.


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Mark Kaire has been practicing law in Miami for nearly 30 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for many years.