I. Introduction

“Unnecessary surgery” is among the most serious forms of medical malpractice because it involves an invasive act that should not have been done at all. Unlike cases where a surgery was indicated but performed poorly, unnecessary-surgery cases generally assert that there was no valid medical basis to operate, or that the extent/type of operation exceeded what the patient medically needed, often due to negligent diagnosis, inadequate evaluation, poor informed consent, or unethical motives.

In the Philippines, claims arising from unnecessary surgery may proceed through multiple tracks—civil (damages), criminal (reckless imprudence), administrative/professional discipline, and in certain settings hospital/health facility liability. Success depends on proving the core elements of malpractice and tailoring evidence to the specific theory: misdiagnosis, failure to meet standards of care, lack of informed consent, fraud, or combinations of these.

II. What Counts as “Unnecessary Surgery”

“Unnecessary” can mean different things legally and medically. Common patterns include:

No indication to operate Surgery was not medically warranted given the patient’s condition, test results, symptoms, and accepted clinical guidelines and practices.
Wrong procedure The condition called for a different treatment (non-surgical management, less invasive procedure, or a different surgical approach), but an inappropriate surgery was performed.
Overtreatment / excessive extent of surgery A medically indicated operation was performed, but the surgeon removed more tissue or performed additional procedures beyond what was clinically justified (e.g., unnecessary hysterectomy, unnecessary organ removal, bilateral procedures when unilateral was indicated).
Surgery based on negligent diagnosis or evaluation The operative decision resulted from failure to take a proper history, do an adequate physical examination, request proper tests, interpret tests properly, or consult relevant specialists.
Surgery without valid consent Even if some procedure might have been indicated, it becomes legally actionable if the patient did not give informed consent for the specific surgery performed, its material risks, and reasonable alternatives.
Surgery induced by misrepresentation or concealment The patient agreed because the doctor misrepresented the diagnosis, exaggerated urgency, or concealed alternatives.

Not every poor outcome implies unnecessary surgery. An operation can be medically justified and still end badly without negligence. Conversely, a technically perfect surgery can still be malpractice if it was unjustified or unauthorized.

III. Legal Bases and Forums in the Philippines

A. Civil Liability (Damages)

A patient may sue for damages under:

Quasi-delict (tort): negligence causing injury (commonly used in malpractice);
Breach of contract / culpa contractual: physician-patient relationship can be treated as a contract for professional services, with implied duty to exercise appropriate care;
Other civil theories: fraud, bad faith, or willful injury depending on facts.

Civil cases are filed in regular courts. The usual remedy is monetary damages: actual, moral, exemplary (in proper cases), and attorney’s fees, among others.

B. Criminal Liability

If the act constitutes reckless imprudence resulting in physical injuries or homicide, criminal liability may arise. Criminal cases require proof beyond reasonable doubt. Many malpractice cases fail criminally even when civil liability may be established, because the burden is higher.

C. Administrative / Professional Discipline

A patient may file a complaint before:

The Professional Regulation Commission (PRC) and relevant professional board (e.g., Board of Medicine); and/or
Professional medical associations’ ethics bodies (where applicable).

Administrative cases focus on violations of professional standards, ethics, and competence. Penalties include suspension or revocation of license, reprimand, fines (depending on rules), or other sanctions.

D. Hospital / Facility Liability

Hospitals may be liable under:

Corporate negligence (failure to maintain safe systems, credential competent physicians, supervise, or adopt policies);
Vicarious liability where the physician is an employee or where “ostensible agency”/apparent authority is established by the hospital holding out the doctor as its agent;
Independent negligence of nurses, staff, and systems (e.g., pre-op clearance failures, wrong chart, inadequate protocols).

Unnecessary surgery claims often target both physician and facility, especially where the hospital’s processes enabled or failed to catch red flags.

IV. Elements of Medical Malpractice in an Unnecessary-Surgery Case

While phrasing varies, civil malpractice typically requires proof of:

Duty Existence of physician-patient relationship (consultation, examination, admission, diagnosis, treatment planning, surgery).
Breach of the Standard of Care The physician failed to act as a reasonably competent practitioner would under similar circumstances.
Causation The breach caused the injury. In unnecessary surgery, causation often focuses on:
- “But for” the negligent decision to operate, the patient would not have suffered surgical harms; and/or
- The patient lost a chance for better outcome through appropriate non-surgical care.
Damages Actual injury/loss: physical pain, disability, additional treatment, costs, lost income, mental anguish, disfigurement, decreased quality of life, etc.

A key nuance: in unnecessary surgery, the breach may occur before the operating room (diagnosis, evaluation, consent), and the injury may be the operation itself and its sequelae.

V. Proving Negligence: Practical Roadmap

A. Establish the Standard of Care

The standard of care in the Philippines is generally proven by expert testimony, showing what competent physicians in the same field would do. Courts typically expect:

A qualified specialist in the relevant discipline (e.g., general surgery, OB-GYN, orthopedics, neurosurgery);
Explanation of accepted workup for the presenting symptoms;
When surgery is indicated vs. contraindicated;
Appropriate differential diagnoses and confirmatory tests;
Reasonable alternatives (watchful waiting, medication, physical therapy, minimally invasive options);
Timing (elective vs emergent).

Because “unnecessary” is a medical conclusion, expert evidence is central.

Exception / helpful concept: Some cases involve errors so obvious that negligence can be inferred (e.g., wrong-site surgery). For unnecessary surgery, this is less common, but may apply when records show no diagnostic basis and no emergent scenario.

B. Show the Breach: Common Theories in Unnecessary Surgery

1) Negligent Diagnosis or Evaluation

Examples of breaches:

Failure to take complete history (red flags ignored);
Failure to perform appropriate physical exam;
Failure to order or correctly interpret imaging/labs;
Operating without confirmatory tests when standard practice requires them;
Not referring to or consulting another specialist when indicated.

Evidence:

Medical records showing missing workup steps;
Imaging reports contradicting the supposed diagnosis;
Lab results inconsistent with surgical indication;
Timeline showing haste toward surgery without evaluation.

2) Departure from Accepted Indications

Even with a diagnosis, the surgery may exceed accepted indications:

Surgery performed despite conservative treatment being the standard first-line;
Surgery performed in absence of severity thresholds (e.g., criteria for certain spinal surgeries or orthopedic procedures);
Procedure chosen not aligned with clinical picture.

Evidence:

Clinical guidelines (used as persuasive, not always conclusive);
Hospital pathways and protocols;
Expert explanation of accepted indications.

3) Lack of Informed Consent

In the Philippines, consent must be informed, not merely a signed form. A valid consent process should cover:

Diagnosis and purpose of surgery;
Material risks and complications;
Probability of success;
Reasonable alternatives including non-surgical options;
Consequences of refusing surgery;
Extent of the operation (what exactly will be removed/changed);
Opportunity to ask questions and time to decide, except in emergencies.

Unnecessary surgery cases often succeed on consent issues when the justification is debatable: if the patient was not told of alternatives or uncertainty, the consent may be defective.

Evidence:

Consent form (often generic);
Pre-op notes, counseling notes;
Witness testimony (patient and family);
Lack of documentation of risk disclosure;
Discrepancies between what was explained and what was done.

4) Unauthorized Extension of Procedure

Sometimes a surgeon encounters unexpected findings and performs additional procedures. The legality depends on:

Whether it was medically necessary to prevent serious harm;
Whether it was within the scope of consent or implied consent in emergencies;
Whether it could have waited for consent.

If a non-emergent additional procedure was performed without consent, liability may arise even if well-intentioned.

Evidence:

Operative report (what was found and why additional steps were taken);
Pathology report (whether tissue removed was diseased);
Expert testimony on urgency and necessity.

5) Fraud/Bad Faith (Rare but Powerful When Proven)

Allegations of unnecessary surgery sometimes involve financial motive. Proving fraud is demanding, but patterns can support it:

Documented exaggeration or falsification;
“Guaranteed” claims inconsistent with medical reality;
Pressure tactics (“operate now or you’ll die today”) without objective basis;
Conflict-of-interest arrangements.

Evidence:

Contradictory records;
Multiple patients with similar patterns;
Internal hospital investigations (if obtainable);
Billing anomalies (supporting but not sufficient alone).

C. Prove Causation in a Way Courts Accept

In unnecessary surgery, causation is often more direct than in complex disease cases:

The operation caused surgical wounds, anesthesia risk exposure, complications, infections, scarring, organ loss, chronic pain, disability.
Even absent complications, the patient suffered pain, recovery time, and costs that would not have occurred.

However, defendants commonly argue:

The patient’s underlying disease caused the symptoms anyway;
The surgery was “reasonable” given uncertainty;
Complications are known risks even with proper care;
Patient consented.

Plaintiffs typically respond by showing:

No reasonable basis to operate, or
Reasonable alternatives would likely have avoided the harm, and
Consent was not informed or was procured by misrepresentation.

A strong causation narrative ties each claimed injury to:

the fact of surgery itself (unavoidable injury), and/or
a specific surgical complication attributable to the unjustified operation.

D. Document Damages Thoroughly

Because damages drive the remedy, meticulous proof matters:

Receipts and hospital bills;
Lost income documents (pay slips, ITR, employer certifications);
Future care projections (rehab, medications, revision surgery);
Disability assessments;
Psych/therapy records where appropriate;
Photographs (scars, disfigurement) with dates;
Journals or pain diaries (supportive, not decisive);
Testimony of family on loss of function and suffering.

VI. Evidence: What to Collect and Why It Matters

A. Medical Records (Core)

Key documents:

Admission records, ER triage notes;
Physician orders and progress notes;
Diagnostic test requests and results (imaging films and formal reports);
Pre-operative clearance notes and anesthesia records;
Consent forms and counseling notes;
Operative report, surgeon’s notes;
Pathology report (crucial when tissue removed—was it normal?);
Discharge summary and follow-up notes.

In unnecessary surgery, the operative report and pathology can be decisive. A pathology report showing normal tissue is not automatically proof of unnecessary surgery (some conditions are functional rather than structural), but it can be powerful when combined with missing workup or questionable indication.

B. Expert Review

A plaintiff’s expert typically prepares:

A written opinion summarizing deviations from standard care;
Analysis of indications and alternatives;
Opinion on causation and damages (including future treatment).

C. Second Opinions and Comparative Evaluation

Second opinions can help, but must be properly framed:

A later doctor saying “I wouldn’t have done it” is not enough;
What matters is whether a reasonably competent doctor would have done it at that time based on available information.

D. Hospital Policies and Credentialing (If Hospital is Sued)

Evidence that a hospital failed to:

Verify surgeon’s qualifications;
Ensure proper consent procedures;
Enforce surgical timeouts/checklists;
Review abnormal complication rates;
Maintain peer review.

This is complex to obtain but can expand liability beyond the surgeon.

VII. Defenses Commonly Raised (and How They Are Addressed)

Exercise of medical judgment Defense: Medicine is not exact; the decision was a reasonable judgment call. Response: Show that the judgment fell outside accepted practice—missing workup, ignoring contradictory tests, no reasonable indication, rushed decision.
Known risks / complications Defense: Complication is a recognized risk even without negligence. Response: In unnecessary surgery, the injury is not only the complication but the unwarranted exposure to risk and the invasive act; also show consent defects.
Informed consent Defense: Signed consent form proves consent. Response: Attack the adequacy of disclosure and voluntariness; show lack of alternatives discussion, lack of risks explanation, or misleading statements.
Emergency Defense: It was an emergency; implied consent applies. Response: Challenge the emergency characterization using vitals, imaging, timeline, and absence of emergent findings in the operative report.
Contributory negligence / patient factors Defense: Patient failed to follow instructions, withheld history, or delayed care. Response: Show that the decision to operate was made regardless, and the harm stems from unjustified surgery.
Prescription / late filing Defense: The claim was filed beyond prescriptive periods. Response: Argue accrual from discovery of malpractice where appropriate; show timely filing.

VIII. Damages in Philippine Civil Actions

A. Actual / Compensatory Damages

Recoverable when supported by receipts or credible proof:

Hospitalization and professional fees;
Medicines, therapies, assistive devices;
Travel costs for treatment (reasonable);
Loss of earnings (proved with documents);
Costs of corrective surgery or ongoing care.

Future medical costs require credible projection, often supported by medical testimony.

B. Moral Damages

Awarded for mental anguish, serious anxiety, humiliation, physical suffering, and similar injuries. Unnecessary surgery—especially involving organ removal, disfigurement, reproductive harm, sexual dysfunction, chronic pain—often supports moral damages.

C. Exemplary (Punitive) Damages

Awarded in addition to moral/compensatory damages when the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner. In unnecessary surgery, exemplary damages are more plausible if there is proof of gross negligence, deceit, or profit-driven misconduct.

D. Attorney’s Fees and Costs

May be awarded in recognized circumstances (e.g., bad faith, compelled to litigate to protect rights), subject to court discretion.

E. Interest

Courts may impose legal interest depending on the nature of the award and timing of demand/judgment.

IX. Criminal Dimension: Reckless Imprudence

When the act results in serious injury or death, prosecutors may consider a case for reckless imprudence. Practical points:

Criminal cases require proof beyond reasonable doubt.
Many disputes about “unnecessary” hinge on standards of care and judgment calls, which can be harder to prove criminally.
Still, where facts show gross deviation—fabricated diagnosis, total absence of basis, unauthorized organ removal—criminal exposure increases.

A civil case can proceed independently, and civil liability may attach even if criminal liability is not proven.

X. Administrative Cases: PRC and Professional Discipline

Even when civil proof is challenging, administrative complaints can succeed because:

The focus is professional competence and ethics;
The burden can be different from criminal court standards;
Sanctions aim to protect the public and uphold the profession.

Unnecessary surgery may implicate:

Gross negligence;
Dishonorable conduct;
Unprofessional or unethical conduct;
Violation of patient rights and informed consent norms.

Administrative findings may also support civil claims, though each forum decides independently.

XI. Special Issues in Unnecessary Surgery Cases

A. Elective vs. Emergent Surgery

Elective surgeries generally require:

More robust counseling and documentation;
Time to consider alternatives and second opinions;
Clear indication.

Emergent surgeries may rely on implied consent when delay threatens life or limb; however, “emergency” is not a blanket excuse.

B. Diagnostic Uncertainty

Some conditions are inherently uncertain. The question becomes whether the physician:

Followed reasonable diagnostic steps;
Communicated uncertainty;
Offered conservative management or further evaluation where appropriate;
Documented the reasoning.

A well-documented decision pathway can defeat an “unnecessary” claim.

C. Pathology Showing “Normal” Results

Normal pathology may indicate:

Incorrect diagnosis; or
A functional problem not visible on pathology; or
Sampling limitations.

Courts weigh this with the entire clinical picture. It is supportive evidence, not automatic proof.

D. Consent Forms vs. Actual Disclosure

Generic consent forms often list risks broadly. The legal inquiry focuses on:

Whether the patient was told the material facts and alternatives;
Whether the patient would have agreed if properly informed.

E. Multiple Defendants and Apportionment

Where hospital systems or multiple doctors participated (surgeon, radiologist, anesthesiologist, internist), liability may be:

Joint and/or several depending on the roles and findings;
Apportioned by courts based on causation and fault.

XII. Litigation Strategy: How Claims Are Built

A. Case Theory Selection

Most successful unnecessary-surgery cases are built around a tight core:

(1) No accepted indication + (2) failed workup + (3) defective consent + (4) tangible injury and costs.

Adding too many theories can dilute credibility unless strongly supported.

B. Chronology is Everything

A clear timeline from first consult to surgery is crucial:

Symptoms → tests → interpretation → decision → consent → surgery → complications → follow-up → discovery of lack of indication.

C. Expert Choice and Framing

The expert must be:

Qualified in the relevant specialty;
Able to explain standards simply and convincingly;
Focused on what competent physicians would do locally under similar conditions.

D. Settlement Considerations

Malpractice cases can be document- and expert-intensive. Settlement often turns on:

Strength of expert opinions;
Documentation gaps;
Severity of injury and future costs;
Whether consent documentation is weak.

XIII. Practical Guidance on Patient Rights and Immediate Steps After Suspected Unnecessary Surgery

Secure complete records (including imaging films and pathology slides if possible).
Get an independent specialist opinion based on the records (not only verbal recollection).
Document outcomes and expenses immediately.
Avoid public accusations without evidence—they can create separate legal exposure.
Consider all forums (civil, administrative, criminal) but align with goals: compensation, accountability, license sanctions.
Act promptly because prescription can become a decisive barrier.

XIV. Conclusion

Unnecessary surgery claims are among the most consequential malpractice actions because the alleged wrong is not merely a poor outcome but an invasive intervention that should never have occurred or should have been significantly narrower. In the Philippine context, proving such a claim hinges on demonstrating a clear departure from the standard of care, often through expert testimony, by showing that competent practitioners would not have recommended or performed the surgery given the information that should have been obtained and considered. Equally important is scrutinizing informed consent, since inadequate disclosure of uncertainty, alternatives, and material risks can convert a borderline clinical decision into actionable misconduct. When proven, damages can include compensatory losses, moral damages for suffering, and exemplary damages in appropriate cases, alongside professional disciplinary consequences and, in extreme scenarios, criminal liability for reckless imprudence.