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Neurosurgeon performed spinal fusion surgery on person viewed incompetent, without POA authorization, can he be sued?

Waukegan, IL |

Would an elective surgery performed on an over-medicated (Narcotic pain meds) individual who was deemed incompetent to stand trial by prosecutors psychiatrist , just prior to this surgery, hold or give evidence to this individuals incompetency for a possible civil lawsuit against the Neurosurgeon for Negligence? Or any other type misconduct by said Neurosurgeon?

Operation being dismal failure,patient still in tremendous pain- latest MRI of surgical site showing "ABNOMOLIES" There is a appointment with a different Neurosurgeon to discuss these "ABNOMOLIES" and a multi-modal rehabilitation appt., both in late July. Patient still in tremendous amount of pain and can perform only the minimal of tasks. Continual debilitating migraine headache, peripheral neuropathy,

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Attorney answers 6


You do not say what happened to the patient as a result of the surgery.

Stephen Laurence Hoffman

Stephen Laurence Hoffman


What Mr. Schoen is pointing out is that EVEN IF there was some battery or other unauthorized or incorrect procedure performed, without some injury as a result of it, there is no case.

David Ian Schoen

David Ian Schoen


You are correct. Thank you.


Assuming the patient was injured in some way by this allegedly unauthorized surgery, you may have a case for a battery. The entire presise of medical law is that the doctor must have the patient's consent to perform a procedure.

If a patient is deemed incompetent, this can be considered a battery. However, this is not necessarily so just based upon being adjudged incompetent for a trial--the standards are completely different.

If you wish to investigate, gather the medical records and contact a lawyer who handles medical negligence cases.

Stephen L. Hoffman
Law Office of Stephen L. Hoffman LLC
Chicago, IL

This answer posted on Avvo is for informational and educational purposes only. There is no attorney-client relationship created or formed and you should not rely on this as legal advice. The suggestion is made that if you wish to protect your rights, you consult with an attorney immediately.


In a medical negligence claim the patient can only recover for the damages proved to be caused by the physician. It is unclear what if any damages were caused.


Any damages? If so, have a local med mal lawyer investigate


Post what the injury was


It may be possible to file if there are damages. The plaintiff must show that the neurosurgeon failed to inform the person of risks and/or alternatives to the procedure, which a reasonably well qualified neurosurgeon would have disclosed under the same or similar circumstances. The plaintiff also must show that if the neurosurgeon has disclosed those risks and/or alternatives, a reasonable person in the plaintiff's position would not have submitted to the procedure. The plaintiff must also show that the plaintiff was injured as a result of the procedure and that the failure to disclose the risk and/or alternatives was a proximate cause of the injury.

This answer provides general information and should not be considered legal advise giving rise to attorney-client relationship.

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