When you undergo surgery, you place your trust entirely in your physician’s judgment. The assumption is that the procedure is medically necessary and will improve your health. When that trust is betrayed, and a surgeon recommends or performs an operation driven by financial gain rather than genuine patient need, the consequences can be devastating: unnecessary risk, prolonged pain, and in some cases, irreversible harm.
If you suspect you or a family member was subjected to an unnecessary or fraudulent surgical procedure in Texas, the surgical malpractice attorneys at Davis & Davis can help you evaluate your options. Steven R. Davis and John A. Davis Jr. have represented Houston-area clients in complex medical malpractice cases, including those involving fraudulent or unnecessary surgical procedures.
What Does Unnecessary Surgery Look Like?
Unnecessary surgery occurs when a physician recommends or performs a procedure that is not medically indicated for the patient’s condition. It may arise from a genuine diagnostic error, but it can also stem from financial motivation, where a surgeon or medical facility stands to profit from the procedure regardless of patient need.
Warning signs that a surgery may not have been medically necessary include:
- The physician discouraged you from seeking a second opinion before scheduling the procedure
- The surgery was scheduled before results from conservative treatments were fully evaluated
- You were told the surgery was urgent or immediately necessary without clear clinical justification
- Your condition did not improve, or worsened, after the procedure
- A second physician later told you the surgery was not indicated for your condition
Criminal Charges and Civil Malpractice: Two Separate Paths
Physicians who perform unnecessary procedures for financial gain may face both criminal prosecution and civil liability. In 2021, a federal court sentenced a Virginia surgeon to 59 years in prison after a jury found him guilty of performing unnecessary surgeries on patients for financial gain, according to a report from the Federal Bureau of Investigation. Cases like this illustrate that unnecessary surgery can constitute both healthcare fraud and medical malpractice simultaneously.
However, the criminal justice system and the civil malpractice system operate independently. A physician can face criminal charges and still not be sued civilly, and a physician can be found civilly liable for unnecessary surgery even if no criminal charges are ever filed. A civil malpractice lawsuit is distinct from any criminal or regulatory proceedings and focuses on compensating you for the harm you suffered.
When Unnecessary Surgery Becomes Medical Malpractice in Texas
To establish a Texas medical malpractice claim based on an unnecessary surgical procedure, you generally must show that the physician’s recommendation or performance of the surgery fell below the standard a reasonably competent surgeon in the same specialty would have met, and that this departure caused you harm. This typically requires testimony from a qualified medical expert who can speak to what the clinical indications for the surgery were, and whether those indications were met in your case.
Recoverable damages in a successful claim may include the cost of the unnecessary surgery and any corrective procedures, lost income, pain and suffering, and in cases of serious permanent harm, compensation for long-term care and diminished quality of life.
If you believe you were subjected to a surgical procedure that was not medically necessary, do not wait to seek legal guidance. Contact Davis & Davis to speak with a Texas medical malpractice attorney about what happened and whether a claim may be available to you.
Frequently Asked Questions About Unnecessary Surgery and Medical Malpractice
How do I know if my surgery was unnecessary?
The most direct way to assess whether a surgery was necessary is to obtain a second opinion from a qualified physician in the same specialty, ideally one who has no connection to the original surgeon or facility. A second physician can review your records, imaging, and test results to determine whether the procedure was medically indicated. If a second opinion suggests the surgery was not warranted, consulting a Texas medical malpractice attorney is the appropriate next step.
Can I sue for a surgery I consented to?
Yes. Signing a consent form does not prevent you from bringing a malpractice claim if the surgery was not medically necessary. Informed consent requires that the physician accurately represent the medical indications for the procedure, the risks, and the available alternatives. If a physician recommended an unnecessary surgery and obtained your consent based on inaccurate or incomplete information, that consent may not shield the physician from liability.
What is the difference between a surgical error and an unnecessary surgery claim?
A surgical error claim focuses on how a procedure was performed, arguing that the surgeon made a mistake during the operation itself. An unnecessary surgery claim argues that the procedure should not have been performed at all, regardless of how it was technically executed. Both are forms of medical malpractice, but they require different expert analysis and focus on different aspects of the physician’s conduct.
How long do I have to file an unnecessary surgery malpractice claim in Texas?
Texas law generally requires medical malpractice claims to be filed within two years of the date of the alleged negligent act, or within two years of when you discovered or should have discovered the harm. There is also a ten-year outer limit. Because the clock typically starts from the date of the surgery, acting promptly is important. An attorney can evaluate the specific timeline of your claim.
What damages can I recover if I had an unnecessary surgery?
Recoverable damages in a successful unnecessary surgery malpractice claim may include the costs of the surgery itself and any follow-up care or corrective procedures, lost income during recovery, and compensation for pain and suffering. If the surgery caused permanent injury or disability, damages may also include future medical expenses and long-term care costs. Texas caps non-economic damages in medical malpractice cases at amounts that vary depending on the type of defendant. Your attorney can explain how these apply to your case.
