Why do NZ Laparoscopic Cholecystectomy Surgeons lie to patients?

“Every informed consent for laparoscopic cholecystectomy in New Zealand is obtained illegally by deception. Obtaining consent illegally is a criminal offence and it is obtained through coercion, deception and concealment, a misrepresentation of risks, side effects affecting quality of life and alternative non-surgical treatment options. This deception occurs under the direct protection of the Health and Disability Commissioner(HDC) and is in breach of the Code of Health and Disability Services Consumers’ Rights (the Code)”

Why would a reasonable surgeon lie to patients about alternative gallstone treatment options, expected risks and side effect risks affecting quality of life (Right 6 of the Code), in order to obtain consent for Cholecystectomies and/or even consider performing unneeded surgical procedures? From a surgeon’s perspective there are three distinct answers:

  1. We perform surgery because we have been trained to do so and because “we have always done it this way” or we simply do not know any better. In German psychology, this behaviour is analogous to a historic entity termed “Funktionslust
  2. We are incentivized to perform surgical procedures, either for financial gain, renown, or both

Philip F. StahelEmail author, Todd F. VanderHeiden and Fernando J. Kim. Why do surgeons continue to perform unnecessary surgery? https://doi.org/10.1186/s13037-016-0117-6

  1. Greed. “Greed plays a role in causing unnecessary surgery, although I don’t think the economic motive alone is enough to explain it. There’s no doubt that if you eliminated all unnecessary surgery, most surgeons would go out of business. They’d have to look for honest work, because the surgeon gets paid when he performs surgery on you, not when you’re treated some other way. In pre-paid group practices where surgeons are paid a steady salary not tied to how many operations they perform, hysterectomies and tonsillectomies occur only about one-third as often as in fee-for-service situations.” Robert S. Mendelsohn

Quote from Royal Australasian College of Surgeons spokesman Dr John Quinn said it was “almost certain” the medical industry influenced surgical decisions. “But we cannot control what individual surgeons do in any given situation. It’s up to them to diagnose and treat their patients as they see fit.”

And why would a surgeon provide an inaccurate and incomplete testimony to the HDC or to ACC treatment injury clinical reviews?  One explanation can be found in the Medical Council of New Zealand Good Medical Practice guide that sets the standard for cultural competence, clinical competence and ethical conduct for doctors. It states:

You must cooperate fully with any formal inquiry or inquest into the treatment of a patient (although you have the right NOT to give evidence that may lead to criminal proceedings being taken against you)”. In other words a Doctor does NOT have to be forth coming with any information that would incriminate and lead to criminal proceedings

From a surgeon’s perspective – Protected 

“But we cannot control what individual surgeons do in any given situation. It’s up to them to diagnose and treat their patients as they see fit”

New Zealand surgeons have gone on the record and stated, “when a patient signs their consent forms”, despite being absent of any disclosed long term side-effects and complications, “the patient has accepted a surgeon’s opinion”.  NZ Surgeon’ believe they cannot be held liable for any subsequent damages to health resulting from long-term side effects of surgery not disclosed, or for not disclosing alternative treatment options. This despite opinions presented that cannot be backed by any evidence-based medical study or information provided by the HDC’s own internal advisors (obtained by Official Information Act request)

Malpractice lawsuits have effectively been blocked by the fact that the HDC continues to issue no breach rulings, based solely on the surgeons’ opinions.

This HDC supported practice is a breach of patient Rights, 4(2) and 4(4):

Every consumer has the right to have services provided those comply with legal, professional, ethical, and other relevant standards. Consent for services cannot be obtained in a fraudulent manner, through deception and concealment. Every consumer has the right to have services provided in a manner that minimises the potential harm to, and optimises the quality of life of the consumer.

Improper professional conduct:  According to the New Zealand Medical Council, this in itself, for terms of reference constitutes malpractice. Malpractice involves illegal or unethical conduct, or neglect of professional duty. However, according to the HDC, breaches never takes place, no referral to the Director of Proceedings to investigate illegal or unethical conduct, or neglect of professional duty.

Suggested further reading: