|Year : 2018 | Volume
| Issue : 1 | Page : 20--23
A medical-legal perspective on overlapping surgery
Alan M Scarrow
Mercy Health System, Springfield, Missouri, USA
Dr. Alan M Scarrow
President,Congress of Neurological Surgeons, USA, 1965 S. Fremont, Suite 200 Springfield, Missouri , 65804
In the U.S., there has recently been increased scrutiny on the appropriateness of surgeons performing overlapping cases and the potential for adverse consequences. This article describes the current literature on overlapping surgery and the ethics that guide behavior by performing a review of the PUBMED literature on overlapping surgery and analysis. Although the literature on overlapping surgery supports it as a safe practice, some public opinion runs contrary to the data, which is driving changes in policy. Surgeons should become familiar with the overlapping surgery policy in the hospital(s) in which they practice and be mindful of the potential consequences of performing overlapping surgeries.
|How to cite this article:|
Scarrow AM. A medical-legal perspective on overlapping surgery.Neurol India 2018;66:20-23
|How to cite this URL:|
Scarrow AM. A medical-legal perspective on overlapping surgery. Neurol India [serial online] 2018 [cited 2020 Aug 3 ];66:20-23
Available from: http://www.neurologyindia.com/text.asp?2018/66/1/20/222813
In the U.S., there has recently been significant public scrutiny on the practice of surgeons, primarily in academic institutions, performing surgeries that overlap in time. One case in particular, that of Tony Meng, a 41-year old man who became quadraparetic following a cervical corpectomy performed at Massachusetts General Hospital (MGH), drew considerable attention and was reported in the Boston Globe. Since the case was first reported in October 2015, there has been strong emotional debate about the appropriateness of a surgeon performing more than one case at a time and the potential consequences associated with that practice. This article reviews the literature on overlapping surgery, the ethical concerns underlying arguments both for and against overlapping surgery, and recommendations for surgeons performing overlapping surgery.
The Case in Focus
On August 7, 2012, Tony Meng, a financial analyst and father of two from Westwood, Massachusetts, underwent a cervical corpectomy performed by Dr. Kirkham Wood, an experienced and respected orthopaedic spine surgeon at MGH. Mr. Meng was Dr. Wood's second case of the day. Meng was put to sleep at 8 am just after Woods started his first case. During Meng's case, Wood made six trips in and out of the operating room as he also attended to the first patient. While performing Meng's corpectomy, the monitoring signals faded and at 1:30 pm, all muscle responses were lost. Following the corpectomy, Wood went back to his first case and then returned to Meng's case to perform cervical laminectomies on him. Meng's case was finished at 7:30 pm, at which time Wood went on to his third case of the day. An MRI done on Meng late in the evening showed the cervical spinal cord at an acute angle, and he was returned to surgery after midnight where a large anterior dural defect was found and repaired. Meng is now quadraparetic and wheelchair bound.
Reporters from the Boston Globe completed dozens of interviews, reviewed hospital records, court filings and hundreds of emails shared by the medical staff regarding the Meng case. A detailed account of their findings was published in the Globe on October 25, 2015 and was met with significant backlash from the public and politicians who voiced concerns about Wood performing more than one surgery at a time. On January 30, 2017, a jury in the lawsuit filed by Meng against Wood and MGH found that Wood failed to inform Meng that he planned to operate on more than one patient at a time during his surgery, but that Wood's divided attention did not cause the man's quadriparesis. Despite that verdict, there continues to be controversy in the U.S. surrounding overlapping surgeries and vocal support for limiting that practice through either individual hospital or federal regulation.
Legal and Ethical Perspective on Overlapping Surgery
While there are no laws in the U.S. that prevent the performance of overlapping surgeries, there are ethical tenets that underlie the standard of care expected of all surgeons. Should a lawsuit ensue, failure to meet that standard of care can result in liability for the physician, hospital or others involved in the case. The underlying question that drives medical ethics and establishing the standard of care is, “What is or should be considered appropriate in a particular situation?”
In the case of overlapping surgeries, there are ethical considerations both for and against its practice. On one hand, surgeons performing overlapping surgery can, in theory, perform more surgeries and offer better access to patients seeking care. By doing more cases, those surgeons are also be able to perform additional training of junior surgeons, take less time in the operating room which can lower surgical risk, and may be are more efficient in utilizing their operating room time. In contrast, there also may be additional risk or adverse consequences to the patient who is part of the surgeon's overlapping surgery schedule. For example, with less supervision of more junior surgeons, patients may be exposed to more risk as those surgeons with less experience take on responsibility that they may not be prepared to handle. Additionally, while performing surgical cases at overlapping times may be more efficient for the surgeon, it may be less efficient for the anesthesia team or require the patients to be under anesthetic for a longer period of time as they wait for the senior surgeon to return to the operating room from other cases. With the surgeon's time split between two or more patients, a loss of focus could also result in less than optimal results.
Even if there is no adverse outcome or additional risk involved in overlapping surgeries, patients who are sharing their surgeon's time with another patient should be given proper informed consent so that they have knowledge that their surgeon may not be performing all aspects of the case.
The literature that compares serial cases (i.e., surgeon concludes one case before beginning another) with overlapping cases (i.e., surgeon begins a second case before the first case concludes) is not extensive but is consistent in failing to show any significant difference in outcome over large numbers of patients and procedures. Zhange, et al., showed no difference in operating room time, procedure time and 30-day complications on 3,640 ambulatory orthopaedic procedures. Guan, et al., showed no difference in overall or serious complications over 1,018 neurosurgical and spine cases, and Hyder, et al., showed no difference in length of stay, 30-day mortality and morbidity over 26,725 general surgery cases.
Despite a lack of evidence for adverse outcomes in these large, retrospective series, there almost certainly remain individual cases where additional risk may be encountered in an overlapping case format. Examples would include instances such as unforeseen complications in routine cases when the senior surgeon was not in the operating room, delegating responsibility to a junior surgeon or other team member that is beyond what they are capable of handling, or when the senior surgeon cannot be reached in a sufficient amount of time. In such instances, it is at least possible that a patient could be harmed as a result of overlapping surgery and the senior surgeon not being at the operating room table at a critical moment.
If the best medical literature available shows no demonstrable difference in outcome or complication profile from serial versus concurrent surgery, would a patient still choose to have their surgeon involved in concurrent cases? A paper by Portal, et al., indicates that is unlikely to be the case. In that study, only 18.2% of patients said they would consent to a resident acting as an operating surgeon with or without direct staff observation. While not all cases of overlapping surgery involve residents, based on that information, it seems that most people anticipate their surgeon is going to be the one performing the case and are unlikely to consent to allow others to take over that primary responsibility.
Center for Medicare and Medicaid Services and American College of Surgeon Guidelines
The recent focus on this issue has prompted another look at guidelines around overlapping surgery. While guidelines do not have the same definition and clarity behind them that federal or state government regulations do, they are nonetheless cited by the Center for Medicare and Medicaid Services (CMS) as standards which should be followed in order to remain compliant with accepted billing practices. CMS billing policy states that teaching physicians can bill for overlapping surgeries provided they are present during the “critical portions” of the procedure and “immediately available” during the entire procedure or arrange for another qualified surgeon to be immediately available. CMS does not define what “immediately available” means in the policy but does state that the “critical portions” of the case are to be determined by the surgeon and should be based on the expertise of the surgeon, resident, fellow or technician involved.
The American College of Surgeons (ACS) has also published guidelines on overlapping surgery. Those guidelines make a distinction between concurrent or simultaneous surgery, defined as when the critical components of two surgeries occur at the same time, and overlapping surgery where the critical portion of one surgery is completed and the surgeon performs critical portions of a second surgery in another operating room. The ACS guidelines are clear that concurrent or simultaneous procedures should not be done but that overlapping surgery is appropriate provided there is no reasonable expectation that the surgeon would need to return to the first surgery or another attending surgeon is immediately available. The ACS goes on to define “critical components” of the case as the portions in which the essential technical expertise and surgical judgment of the surgeon is required to achieve an optimal patient outcome. It also defines “immediately available” as reachable through a paging system or other electronic means.
The story of Tony Meng resonated widely throughout the U.S. and prompted numerous media reports as well as hearings by the U.S. Senate Finance Committee on how to regulate overlapping surgeries. Hospitals throughout the U.S. have revised their policies on overlapping surgery as a result, and a number of academic institutions have placed clearer parameters on what is appropriate for residents or fellows to do unsupervised. Since there is no data to suggest that patients being operated on by an attending surgeon in a serial fashion have any different complication profile or outcome than patients who are operated on by surgeons performing overlapping surgery, why would the Meng case cause such a response?
One reason is that the story of Tony Meng is very compelling – a young father with a difficult but common neurosurgical problem who came out of surgery with a devastating injury. While spinal cord injuries are a known complication in such a case, it is also natural for patients, families and their attorneys to look for answers. Due to some good investigative reporting by the Boston Globe and a trail of emotionally charged emails by MGH coworkers, what may have been a typical medical malpractice case in the aftermath of a bad outcome instead became a national story with far reaching consequences.
Another reason is the underlying beliefs that people now hold toward health care and physicians. In the U.S., health care has become a complicated industry involving hospitals, physicians, insurance companies, and drug and device manufacturers, all of whom need to return a profit in order to remain viable. Within that complex industry, physicians are paradoxically held in high esteem by many for their unselfish and tireless efforts while others see them as just another group motivated less by professionalism and more by greed. This mixture of perception and feelings has created tightly held beliefs in the minds of the public – beliefs that they seek to confirm through stories such as that of Tong Meng. In other words, if one is of the belief that physicians and surgeons are generally acting in the best interest of patients in the course of doing a very difficult job in a busy and chaotic environment, the story of Tony Meng tends to look like an unfortunate outcome under trying circumstances. On the other hand, if one is of the belief that the work of physicians and surgeons has become a profession where maximizing revenue by performing as many cases as possible is the norm, the story of Tony Meng reads like a detailed drama of how unscrupulous ends attempt to be justified by unacceptable means. In either case, the Meng story exposes a sense that for many, the underlying trust traditionally placed in physicians has eroded.
What To Do Next?
Regardless of the regulatory outcome in the U.S., it is important for all surgeons performing overlapping surgery to get involved with the overlapping surgery policy at their hospital (s). If those policies already exist, they need to be understood and either followed or altered to reflect contemporary thinking. If they don't exist, surgeons need to be involved in their development and implementation.
A more difficult problem is whether surgeons can or should change their behavior with regard to overlapping surgeries. In an era when health care institutions and physicians are incentivized to be more productive, more efficient, and more effective, overlapping surgery seems to have a place provided it is performed in appropriate cases with a well trained team. If anything, the economic reality of our time will only escalate those needs. Further, the training of young surgeons must be carried on in a fashion of progressive, graduated responsibility under the supervision of senior surgeons. As our populations grow, the need for that training will also escalate.
Still, the need for economic productivity, efficiency and teaching must be balanced with the expectations patients have for being the sole focus of our attention. At moments such as when patients are anesthetized on the operating table, completely vulnerable and cannot speak for themselves, we must not fail to do the right thing and ensure that their interests are placed before all others. In situ ations where the surgeon's time and attention may be coveted by many, we must never forget our primary reason for being there in the first place. A well thought out plan with contingencies on how to manage a busy and often complicated operating room schedule is the best way to prevent situations where overlapping surgeries could lead to less than optimal outcomes.
This article was presented at the California Association of Neurological Surgeons on January 13, 2017.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
|1||Abelson J, Saltzman J, Kowalczky L, Allen S. Clash in the name of care. Boston Globe 2015; October 25. Available from: https://apps.bostonglobe.com/spotlight/clash-in-the-name-of-care/story/.[Last accessed on 2017 Nov 19].|
|2||Zhang AL, Sing DC, Dang DY, Ma CB, Black D, Vail TP, Feeley BT. Overlapping surgery in the ambulatory orthopaedic setting. J Bone Joint Surg Am. 2016;98:1859-67.|
|3||Guan J, Karsy M, Brock AA, Couldwell WT, Kestle JRW, Jensen RL, et al. Impact of a more restrictive overlapping surgery policy: An analysis of pre- and postimplementation complication rates, resident involvement, and surgical wait times at a high-volume neurosurgical department. J Neurosurg Nov 3:1-9. doi: 10.3171/2017.5.JNS17183.|
|4||Hyder JA, Hanson KT, Storlie CB, Glasgow A, Madde NR, Brown MJ, Kor DJ, Cima RR, Habermann EB. Safety of overlapping surgery at a high-volume referral center. Ann Surg 2017;265:639-44.|
|5||Porta CR, Sebesta JA, Brown TA, Steele SR, Martin MJ. Training surgeons and the informed consent process: Routine disclosure of trainee participation and its effect on patient willingness and consent rates. Arch Surg 2012;147: 57-62.|
|6||42 CFR 415.172-Physician fee schedule payment for services of teaching physicians. Available from: https://www.law.cornell.edu/cfr/text/42/415.172. [Last accessed on 2017 Nov 19].|
|7||Statement on principles of patient education. American College of surgeons Bulletin 2016;101:19-34. Available from: https://www.facs.org/~/media/files/publications/bulletin/2016/2016%20may.ashx. [Last accessed on 2017 Nov 19].|
|8||United States Senate Committee on Finance. Hatch, Wyden issue bipartisan report on concurrent and overlapping surgeries. Investigation leads to improved policies at prominent teaching hospitals. Available from: https://www.finance.senate.gov/chairmans-news/hatch-wyden-issue-bipartisan-report-on-concurrent-and-overlapping-surgeries. [Last accessed on 2017 Nov 19].|
|9||Dalbey B. 'Greedy Butcher' doc accused of unnecessary surgeries gets 19 years. Detroit Patch October 17, 2017. Available from: https://patch.com/michigan/detroit/greedy-butcher-doc-accused-unnecessary-surgeries-be-setenced. [Last accessed on 2017 Nov 19].|