The Doctor You Hired And Paid Did Not Do Your Surgery: Medical Malpractice?


When we go to purchase anything or receive a service, the reviews of a product, person, company, or service dominate our choices. Think about how pervasive websites like Angie’s List, Yelp, Amazon Reviews, and other companies are in influencing our decisions. You can even review college professors prior to signing up a class at Rate My!

The same is true for healthcare professionals. Websites like Health grades are very influential and important. Some people do not spend a lot of time looking for doctors, and others are in an emergency and can’t, but most of the time we will review and search for a good doctor to perform the treatment we need. This could be something like a pediatrician for our children, or something more complicated like a hip replacement surgery.

The bottom line is most of us will “doctor shop” before we sign up for a procedure. We want to have control to pick the facility and the doctor to perform our surgery and treatment. This is important and we want to pay for that person’s expertise.

You pay and then go under for surgery. But that surgeon doesn’t do the procedure! Is that medical malpractice? Is that even legal?!

Can a doctor be liable for agreeing to perform a surgery, we paying him or her, and then the doctor passes it to someone else?

What happens if there is medical malpractice—is that doctor liable or the replacement?

All good questions! Generally, the common practice and custom of the facility will govern.

Many times a facility or hospital will allow a doctor to be the lead on the surgery, but have residents and other doctors help perform most of the procedures. Generally, liability may not be imputed on the doctor you had signed up for to do the surgery if another surgeon commits the medical malpractice. That thinking is known as the captain of the ship doctrine, which some states still follow, but New York does not.

You also do not have a cause of action against the doctor you signed up for to do the surgery and then he or she did not do it. UNLESS, you had that doctor personally agree to perform the surgery. That is, if you made a CONTRACT for that doctor to perform the surgery. In that instance, the doctor may be found to have breached the contract if he or she assigned the surgery to someone else to do. It may not be negligence, but it may be a breach!

But how is this far? If you sign up for one doctor to do a surgery after researching him or her, and then paying him and her a lot of money, how can that doctor pass the surgery off to someone else—especially a resident with NO experience! This can create a question of fact for a jury, but it unfortunately is not automatically medical malpractice. It can, however, support your medical malpractice case. It is very fishy though and should be illegal!