A topic that transcends multiple practice areas is that of medical necessity. As a Miami Personal Injury Lawyer that represents individuals injured in accidents and by way of Medical Malpractice, the issue of medical necessity is a constant theme.
In a controversial article, The New England Journal Of Medicine published the results of a recent study concluding that thousands of people may be undergoing unnecessary arthroscopic surgery for meniscus repairs. Arthroscopic surgery on the meniscus is the most common orthopedic procedure in the United States, performed about 700,000 times a year at an estimated cost of $4 billion. I myself have undergone 2 surgeries.
The consensus is that arthroscopic surgery should be performed in only certain circumstances, and does not benefit all patients. Specifically, surgery is beneficial for younger patients and for tears from acute sports injuries. However, 80 percent of tears develop from wear and aging, and some researchers believe surgery in those cases should be limited. As quoted in The New York Times, Dr. David Felson, a professor of medicine and epidemiology at Boston University, said: “Those who do research have been gradually showing that this popular operation is not of very much value.” This study “provides information beautifully about whether the surgery that the orthopedist thinks he or she is doing is accomplishing anything. I think often the answer is no.”
As an individual that had a traumatic tear, I can tell you that the surgery was beneficial. The key to whether the surgery is medically necessary and reasoanble is based on age, nature of injury, and the individual’s lifestyle. That is a good point to distinguish the unnecessary medical procedure from the medical malpractice standpoint, and from the defense in a general personal injury claim.
In cases involving a knee injury from an accident (car accidents, bicycle crashes, slip and falls) the insurance company will try to argue that the injury(meniscal tear) was not traumatic, but was degenerative in nature. They will further argue that surgery is likewise not related to the accident and thus they are not responsible for payment of the medical bills. This is combated in a multitude of ways. First and most obvious is the Plaintiff’s prior medical records or lack thereof. To that end, if the Plaintiff had been living pain free and without any knee complaints prior to the accident in question, it certainly takes away from the defense argument that the condition was pre-existing
An additional way to combat the Insurance companies tactics is with the well settled case law in the state of Florida. Specifically, if the insurance carrier claims that surgery was unnecessary and rose to the level of Medical Malpractice, then the defendant that caused the original accident is still responsible. This is the law under the case of Stuart v. Hertz. In summary the case says that the original tortfeasor is responsible for any subsequent damages the Plaintiff incurs as a result of the original accident.
Surgery that is not medically necessary in the medical malpractice context, is often referred to as “surgery for bucks” or “cutting for bucks”. The obvious implication is that the doctor performed this surgery for his financial gain. In these types of cases we must prove that the decision to perform the surgery was below the standard of care. These types of cases are in direct opposition to most medical malpractice cases that arise from a failure to diagnose or a failure to treat the medical condition. In order to prove a claim for unnecessary surgery we would look at the Plaintiff’s MRI studies and/or x-rays, physical complaints, and lifestyle to determine if he/she was truly a candidate for surgery or if physical therapy would have been equally beneficial. Assuming that surgery was not necessary, the next question is that of damages. What are the damages caused by this unnecessary procedure? This is where these cases can become very difficult. For example, If a Plaintiff underwent an unnecessary meniscectomy the only damages may be the cost of the surgery. Alternatively, if the knee continued to have problems after the surgery, the argument can be made that the doctor created a worse condition in the knee than that which previously existed.