MEDICAL overtreatments are an unresolved concern in our society and contribute to patient injury and increased costs.
You have a good family insurance package, so why not just remove the thyroid or go through a thyroidectomy?
Those words, spoken casually by an endocrinologist during a consultation for simple, benign nodules, continue to linger in my mind.
The suggestion that my brother and I undergo major organ removal and become dependent on thyroxine (levothyroxine) for the rest of our lives, not out of clinical necessity, but because our insurance coverage could absorb the claim, was deeply unsettling.
It offered a direct look into a concerning trend in modern healthcare: insurance policies leveraging unnecessary surgical procedures.
Beyond the immediate ethical concern, it raises a critical legal question regarding where profit-driven overtreatment moves from a breach of medical ethics into medical negligence or gross negligence under Malaysian tort law.
In medical jurisprudence, distinguishing between ordinary negligence and gross negligence remains a challenging issue for the courts. While both exist on a spectrum of clinical error, they differ in intent, degree, and standard of care.
Ordinary medical negligence occurs when a healthcare provider makes an honest mistake or fails to provide the standard of care expected of a reasonably competent professional in similar circumstances.
It is an objective failure, such as misreading a lab result, misinterpreting an imaging scan, or missing a diagnostic sign during a busy shift. While the outcomes can be tragic, the underlying act stems from human error or systemic oversight.
Gross negligence involves a far greater departure from standard practice. It requires a conscious, voluntary act or omission in reckless disregard of a legal duty and patient safety.
It represents a significant indifference to care, such as operating under the influence, performing procedures on the wrong surgical site, or recommending invasive surgeries for benign conditions primarily for financial gain.
In medical malpractice litigation, events are examined after a poor outcome has occurred. A series of minor misjudgements can appear reckless in hindsight, even if individual choices seemed reasonable to the practitioner at the time.
Standard negligence requires proving a failure to meet objective clinical standards. Gross negligence often requires establishing a practitioner's state of mind, demonstrating that they consciously disregarded known risks or prioritised financial gain over patient safety.
Proving subjective intent within a complex medical record is difficult. Modern healthcare delivery involves multiple personnel and administrative processes. When harm occurs, or unnecessary procedures are advised, liability can be spread across hospital protocols, billing practices, and clinical teams, making individual accountability hard to pinpoint.
Defensive medicine further complicates the landscape, contributing to excessive testing that physicians believe may discourage medical malpractice lawsuits.
Excessive healthcare spending is likely to continue as long as physicians' concern about medical liability leads to ordering additional tests to avoid a missed diagnosis or interventions to prevent poor outcomes.
Recommending the surgical removal of an organ when benign nodules could be safely monitored with periodic ultrasound scans violates the core medical duty to avoid unnecessary harm.
Despite ultrasound scans and biopsies, inducing fear in patients also constitutes medical negligence. Performing an unnecessary surgery can constitute medical negligence, even if the patient underwent standard pre-operative testing and signed a consent form.
When medical recommendations are influenced by insurance payouts rather than clinical necessity, patients face real risks, including anaesthetic complications, lifelong hormone dependency, nerve injury, and difficult surgical recovery without clinical benefit.
Furthermore, ordinary negligence usually leads to civil claims covered by medical defence insurance, whereas gross negligence can result in criminal investigations, punitive damages, and disciplinary action by professional regulators.
International precedents highlight the severity of this issue. In 2012, Louisiana cardiologist Dr Mehmood Patel was criminally charged and convicted of performing unnecessary coronary stent placement and balloon angioplasty procedures after having been the highest-billing interventional cardiologist in the state.
Similarly, in United States vs McLean, a busy cardiologist was convicted of fraud for placing coronary stents in vessels with only 50 per cent blockages, where government experts established that at least a 70 per cent blockage was required to justify the procedure.
In 2015, an Indiana family successfully sued a now-deceased orthopaedic surgeon for performing an unnecessary distal clavicle resection on their 16-year-old wrestler son after an expert medical panel confirmed the operation was unwarranted.
Ensuring patient protection requires strict oversight from regulatory bodies such as the Malaysian Medical Council and clear standards from the judiciary. Medical decisions must remain centred on clinical necessity rather than commercial opportunity.
When clinical recommendations are shaped by insurance limits rather than patient health, it represents a breakdown in the duty of care that demands strict accountability.
Head, School of Law Enforcement, Malaysia University of Science and Technology (MUST)
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