JBJS | Article

The Journal of Bone & Joint Surgery, Volume 84, Issue 1

Ethics in Practice | January 01, 2002

Ghost Surgery: The Ethical and Legal Implications of Who Does the Operation

Mininder S. Kocher, MD, MPH

The Journal of Bone & Joint Surgery. 2002; 84:148-150

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Abstract

Case 1: A patient who is rehospitalized for complications after shoulder arthroscopy discovers that his surgeon’s partner performed the operation. The orthopaedists contend that they practice as a "team," deciding who does the specific case just prior to the operation¹.

Case 2: Arthroscopic partial meniscectomy is performed by a resident. The attending orthopaedist scrubs briefly and then leaves to perform a simultaneous procedure in another room. The patient has a postoperative complication².

Case 3: Carpal tunnel release is performed by a resident, under the supervision of an attending orthopaedist who has been present for the entire case and who has introduced the resident as his assistant in the informed-consent process. The median nerve is injured by the resident³.

Figures in this Article

Introduction

Introduction | Legal Implications | Ethical Implications | Conclusions | References

Surgery is unique among medical treatments because it is often performed on voluntarily unconscious patients, making it possible to substitute surgeons without the patient’s knowledge or permission. This potential for "ghost surgery," promulgated by well-publicized anecdotes, has resulted in great concern among the lay, political, regulatory, legal, and medical communities about who does an operation.

The concept of ghost surgery burst into the public arena through sensationalized anecdotes in the late 1970s, such as the Sixty Minutes episode on CBS about a general-surgery residency training program^4-6. Shocking headlines soon followed, including: It’s Operating Time. Do You Know Where Your Surgeon Is?;Operating Room Ghost Stories Are Amazingly True; Confessions of a Salesman Surgeon; Surgery by Amateurs Uncovered by Probes; and Ghost Surgery—You May Be Paying for the Eminent Dr. Jones to Operate on You, but an Assistant or Resident May Actually Do the Job⁶. State and federal task forces were formed to investigate the issue^4,5.

Legal Implications

Introduction | Legal Implications | Ethical Implications | Conclusions | References

The legal doctrine of informed consent stems from fundamental principles regarding individual autonomy and the fiduciary doctor-patient relationship. Theories have traditionally been grounded in the intentional tort law of battery, with more recent theories based on the law of negligence^7,8. The legal history of informed consent involves an evolution of principles stemming from individual rights to bodily integrity (Schloendorff decision, 1914)⁹ and rights to material information (Salgo decision, 1957)¹⁰ to a fiduciary duty to disclose (Canterbury decision, 1972)¹¹ and the right to informed refusal of even beneficial treatment (Candura decision, 1978)¹².

In the modern application of informed consent, consent is either specifically expressed or implied by surrounding circumstances. Expressed consent is usually obtained in writing, but it can be obtained verbally. Implied consent is obtained by the conduct of the patient in a particular case or by the application of existing law in certain factual situations. Prerequisites to consent include the opportunity to withdraw from the proposed treatment and comprehension of the nature and risks of treatment¹⁰. It is more difficult to define the scope of consent. A surgeon who extends a surgical procedure beyond the limits previously discussed with the patient may be liable for battery^13-15. However, courts have generally found that a surgeon is justified in reasonably extending an operation because of an emergency or if consent was made to remedy an overall condition^13,16-19. Broadly, informed consent is viewed as a process of shared decision-making in which it is a physician’s duty to disclose material information that would be necessary for a reasonable patient to make an informed decision^3,7,8.

Regarding ghost surgery, the courts have not viewed surgeons as fungible and they have held that a patient’s choice of surgeons is as important as consent to the procedure itself. Surgery performed by a surgeon to whom the patient has not given consent may be a cause of actions claiming that the operating surgeon committed battery and that the surgeon to whom the patient did give consent committed malpractice or fraud (Case 1)^19-25. Because it is an intentional tort, battery allows recovery even for the normal and foreseeable effects of surgery. The patient does not have to be injured, and liability does not have to be assigned. The fact that battery has occurred is sufficient^7,8,19. Cases alleging unauthorized surgery by surgical trainees have, in general, been found to constitute battery or negligence if there was inadequate supervision (Case 2) or if there was an explicit agreement regarding roles during surgery^2,20. Courts have usually decided in favor of the surgeons when there was adequate supervision (Case 3) or when the patient gave consent for the resident to act as the operating surgeon³.

Ethical Implications

Introduction | Legal Implications | Ethical Implications | Conclusions | References

Informed consent, a concept that emerged after the horrors of medical experimentation were revealed in the Nuremberg trials, has been identified as the hallmark of medical ethics in the modern era^14,26,27. The ethical framework for valuing informed consent is based on respect for autonomy, which is a central concept in some utilitarian, deontological, virtue ethics, and principalist theories. The ethical importance of respect for autonomy implies that patients have the right to make decisions concerning their own bodies, including the right to choose treatments, the right to refuse treatments, and the right to all material information regarding treatment.

The organized medical community has taken ethical positions regarding unauthorized surgery that reflect the value of respect for autonomy that has been recognized in the relevant legal decisions already mentioned. The Council on Ethical and Judicial Affairs of the American Medical Association stated^28,29:

A surgeon who allows a substitute to operate on his or her patient without the patient’s knowledge and consent is deceitful. The patient is entitled to choose his or her own physician and should be permitted to acquiesce to or refuse the substitution. The surgeon’s obligation to the patient requires the surgeon to perform the surgical operation . . .

It should be noted that it is the operating surgeon to whom the patient grants consent to perform the operation. The patient is entitled to the services of the particular surgeon with whom he or she contracts. The operating surgeon, in accepting the patient, is obligated to utilize his or her personal talents in the performance of the operation to the extent required by the agreement creating the physician-patient relationship. The surgeon cannot properly delegate to another the duties which he or she is required to perform personally.

Under the normal and customary arrangement with patients, and with reference to the usual form of consent to operation, the operating surgeon is obligated to perform the operation but may be assisted by residents or other surgeons. With the consent of the patient, it is not unethical for the operating surgeon to delegate the performance of certain aspects of the operation to the assistant provided this is done under the surgeon’s participatory supervision, i.e., the surgeon must scrub. If a resident or other physician is to perform the operation under non-participatory supervision, it is necessary to make a full disclosure of this fact to the patient, and this should be evidenced by an appropriate statement contained in the consent. Under these circumstances, it is the resident or other physician who becomes the operating surgeon²⁸.

If the surgeon employed merely assists the resident or other physician in performing the operation, it is the resident or other physician who becomes the operating surgeon. If the patient is not informed as to the identity of the operating surgeon, the situation is "ghost surgery."

An operating surgeon is construed to be a performing surgeon. As such, his duties and responsibilities go beyond mere direction, supervision, guidance, or minor participation. The physician is not employed merely to supervise the operation. He is employed to perform the operation. He can properly utilize the services of an assistant to assist in the performance of the operation, but he is not performing the operation where his active participation consists merely of guidance or standby responsibilities in the case of emergency²⁹.

The American College of Surgeons takes a similar stance in its Statements on Principles³⁰:

A surgeon may delegate part of the care of patients to associates or residents under his or her personal direction, because modern surgery is often a team effort. However, the surgeon’s personal responsibility must not be delegated or evaded. It is proper for the responsible surgeon to delegate the performance of part of a given operation to assistants, provided the surgeon is an active participant throughout the essential part of the operation. If a resident is to operate upon and take care of the patient, under the general supervision of an attending surgeon who will not participate actively in the operation, the patient should be so informed and consent thereto. It is unethical to mislead a patient as to the identity of the doctor who performs the operation.

Conclusions

Introduction | Legal Implications | Ethical Implications | Conclusions | References

The substitution of an authorized surgeon by an unauthorized surgeon or the allowance of unauthorized surgical trainees to operate without adequate supervision constitutes "ghost surgery." These practices are legally and ethically iniquitous. Ghost surgery flies in the face of case law and violates an individual’s right to control his or her own body and violates that person’s right to information needed to make an informed decision. Such practices breach the fiduciary doctor-patient relationship and may therefore be a cause of action against the unauthorized surgeon for battery and against the authorized surgeon for malpractice or fraud. Assistance by a surgical trainee with adequate supervision does not constitute "ghost surgery" when there has been adequate disclosure and truly informed consent. Adequate supervision entails active participation by the attending surgeon during the essential parts of an operation.

Note: The author acknowledges Troyen Brennan, MD, JD, MPH, of the Harvard School of Public Health and Harvard Law School for his careful review of this article.

References

Introduction | Legal Implications | Ethical Implications | Conclusions | References

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Buie v. Reynolds, 571 P.2d 1230 (Okla. Civ. App. 1977)

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Siegel JH. Surgical training, quality surgical care, and informed consent. Bull N Y Acad Med,1980;56: 433-52. 56433 1980 [PubMed]

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Schloendorff v. New York Hospital, 211 N.Y. 125; 105 N. E. 92 (1914)

Salgo v. Leland Stanford Jr. University Board of Trustees, 317 P.2d 170 (Cal. App. 1957)

Canterbury v. Spence, 464 F.2d 772 (DC Cir. 1972)

Lane v. Candura, 376 N.E.2d, 1232, 6 Mass. App. Ct. 377 (1978)

Mohr v. Williams, 95 Minn. 261, 104 N. W. 12 (1905)

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Lundmark T. Surgery by an unauthorized surgeon as a battery. J Law Health,1995-1996;10: 287-96. 10287 1995-1996

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Watkins v. Cleveland Clinic Foundation, 72838 Ohio App. (1998)

Grabowski v. Quigley, 454 Pa. Super. 27; 684 A.2d 610 (1996)

Kovacs v. Freeman, 957 S.W.2d 251; (Ky. 1997)

Vitali v. Bartell, No. 353 206 (Cal. Super. Ct. Orange County Mar. 2, 1984)

Hoffman v. Palmer, 129 F.2d 976, 991 (2d Cir. 1942), aff’d, Palmer v. Hoffman 318 U.S. 109 (1943)

Beauchamp TL, Childress JF.Principles of biomedical ethics. 4th ed. New York: Oxford University Press; 1994. p 120-88

Thomasma DC,Pickleman J. The ethical challenges of surgical training programs. Bull Am Coll Surg,1983;68: 18-23. 6818 1983 [PubMed]

E-8.16 Substitution of Surgeon without Patient’s Knowledge or Consent. (I, II, IV, V) Issued prior to April 1977; Updated June 1994. AMA Policy Finder—Current Opinions of the Council on Ethical and Judicial Affairs (http://www.ama-assn.org).

Judicial Council of the American Medical Association. Substitution of surgeon without patient’s knowledge (8.12). In: Current opinions of the Judicial Council of the American Medical Association. Chicago: American Medical Association; 1984. p 31-2.

American College of Surgeons. Statements on principles. ACS: 1994 (http://www.facs.org/fellows_info/statements/stonprin.html)