Expert: Morgan Smith - 7/4/2011

Question
I've found out of state surgeon who agreed to repair my hernia with non-mesh method. During my office visit he conducted complete examination as a result of which he scheduled my surgery in a month and a half after that visit. (I am a heart p-t, but he would not agree for local anesthesia for me to avoid extra strain on my heart, although this procedure allows local#. All the time before the procedure I had to comply with various blood tests and procedures, including clearance from a cardiologist for a surgery. For that clearance alone cardiologist had to run numerous expensive tests, paid by my ins. co. I also undertook steps to loose some weight before surgery for better healing. After everything was ready, 2 days before surgery, I inquired him about absorbable sutures instead of permanent. It was trivial, insignificant issue, but he  reacted like a sick egoistic child, and unexpectedly cancelled my surgery. He said nobody can tell him how to do the procedure, although I just was a bit nervous and have some #small# concerns. I am shocked as a result of his reaction #and don't know what to do in view of many horror stories from poor people who had unfortunate results from mesh surgery, and it is difficult to find a Dr. who would do it without mesh#.  

My question is, what remedies i have as a result of his cancellation? Should he reimburse ins. co. for my visit since I came to him not just to say hello but to do a surgery which he agreed to? #Ins. co also did not have to pay for all those tests and cardiologist which  otherwise were unnecessary if not for a surgery) and assuming he had no right to cancel his procedure, can I complain to his State or other professional org. for his improper action?
Thank you very much! Happy 4th of July!

Answer
Dear vlad,

Before I respond further to your question, I must make clear that I do not represent you, and cannot give you individual particularized legal advice. No attorney client relationship is created by this email. For legal advice, you should hire your own attorney, and follow their advice. My role with AllExperts is limited to providing general information and suggestions for educational or general knowledge purposes.

Before you take any action, consult with your own attorney. Speak to an attorney licensed to practice law in your state about the strengths, weaknesses, and likely outcomes of any contemplated cause of action or defense.

Your question is about canceling a procedure, as you put it "breech" of contract.

To sue successfully for breach of contract, you have to establish that there was a contract.  Examine all documents between you and the surgeon/hospital.  Did they promise to perform the operation, or were you still in negotiations?  

A contract is typically defined as an offer and acceptance supported by consideration.  Did you pay for the operation, or just the tests?  If you have received all of the services you paid for, I think it might be a stretch to call the surgeon's cancellation a breach of contract.  Remedies for breach of contract are typically sufficient damages to put the injured party back to where they were before the breach.  So, if a magic wand could take you back to the second before the doctor cancelled, how would you be any better off than you are now?

However, and perhaps of greater value and satisfaction to you might be to pursue your complaint to his licensing authority for treating you discourteously and unnecessarily upsetting you when you are unwell.

I welcome you to consult with an attorney licensed in the appropriate jurisdiction(s) for advice, but in the meantime urge you to move on with your medical concerns and find a doctor that you want to work with the get your body taken care of.

I hope this helps, good luck to you.

Morgan Smith
SMITH & RAVER LLP
Minneapolis, Minnesota
smith-and-raver-llp.biz
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