Unnecessary Surgery

FROM THE STANDPOINT of the criminal law, willfully committing unnecessary surgery (or other unnecessary medical treatments) is fraud because it obtains money from the patient under the false pretense that the medical procedure is necessary. It is also a crime against the person because, depending upon the extent of the intrusion, the unnecessary surgery or treatment would involve battery, mayhem, or criminal homicide.

The victim's consent cannot be used as a defense by the offender because consent was obtained under false pretenses. In cases of unnecessary surgeries and treatments by veterinarians, the behavior would comprise fraud and cruelty to animals. Insurance companies who are asked to pay for willfully committed unnecessary surgeries and treatments would also be fraud victims. Concerns about unnecessary[Page 842] medical procedures in America go back as far as 1775, but standards regulating American physicians' decisions to perform surgeries and treatments were not forthcoming for at least a century and a quarter later.

Determining whether a procedure is ineffective or inappropriate is the crux of defining unnecessary surgery.

It was not until the first decade of the 20th century that Ernest Amory Codman proposed to assess the competency of hospitals and physicians through his “end-result plan,” which tracked hospital patients after medical procedures. Codman was appointed as chairperson of the Clinical Congress of Surgeons' (the forerunner to the American College of Surgeons) Committee on Hospital Standardization, a role in which he crusaded for a national standardization in hospital medical care. In 1920, John G. Bowman, the first director of the American College of Surgeons, advocated “minimum standardization” to identify unnecessary surgery and lax diagnoses.

Defining exactly what is “unnecessary” surgery or treatment is problematic. Whether a medical procedure is ineffective or inappropriate for a given medical circumstance is the crux of what is meant by unnecessary. Yet, any operation or treatment that fails to produce its desired result can later be judged as ineffective and inappropriate, though there initially was a presumed potential to help the patient.

Perhaps the best way to define a criminal unnecessary medical procedure is when a doctor knowingly lies by telling a patient that her condition requires a particular surgery or treatment. This approach includes nearly all connotations of intentional fraud in the delivery of medical procedures by legally practicing physicians. It would include the delivery of procedures known by the physician to be ineffective. It would also encompass delivering procedures without advising the patient about other methods known to the physician that would have the same outcome and be less expensive or less intrusive.

Unintentional unnecessary medical procedures should not be confused with the intentional ones; the former are civil wrongs (torts) and result from incompetence while the latter are crimes that result from intents to defraud. Of the many billions of dollars paid each year for unnecessary physician procedures, a portion is spent because of incompetence and the rest is the product of doctors' willful attempts to defraud and to maim. Incompetent decisions to perform unnecessary surgery may be so plainly bad that they meet a prosecutor's legal threshold for charges of criminal negligence.

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