Concurrent Cases Can Be a Problem Not Just for Anesthesiologists

Recent media coverage of surgeons operating in two concurrent cases raises three issues:  (1) patient safety, (2) compliance with the Medicare teaching physician billing rules and (3) transparency vis-à-vis patients.

The Safety Controversy

The question whether it is right or safe for surgeons to run two operations at once erupted publicly last year when the Boston Globe published a detailed report (Clash in the Name of Care) focusing on events that had occurred at Massachusetts General Hospital (MGH) in August 2012.  A 41-year old patient had undergone complicated spinal surgery from which he emerged a quadriplegic, and it revealed itself that his surgeon had been in and out of the operating room, attending to a patient undergoing spinal fusion in another OR for seven of the eleven hours that the first case took to complete. 

A controversy among MGH surgeons and anesthesiologists over concurrent surgeries had been years in the making.  “A small but determined cohort of anesthesiologists and other Mass. General employees complained about at least 44 alleged problems involving concurrent surgeries,” the Globe article reported.  Approximately three percent, or 1,000 cases annually, at MGH involved at least one patient with an open incision while a second case was underway.  In the orthopedics department, however, 25 percent of cases overlapped.  MGH denied all the allegations.

The senior hip and knee surgeon who had led the opposition to the practice—which he had been challenging for a decade—gave the Globe copies of internal hospital documents, with information that could identify patients removed, and he was quickly fired for being disruptive.  After the dismissal, MGH conducted a review of 25 concurrent surgeries that had had complications and reported that none of the complications was due to the double-booking.  The hospital also engaged a former federal prosecutor to investigate and he allegedly reported that there was nothing wrong with the practice of running cases concurrently.  (Rappleye E. Concurrent surgeries cause conflict at MGH: 10 things to know.  Beckers Hospital Review online, October 27, 2015).

The opposition leader alerted the Massachusetts Department of Health, which investigated and found nothing amiss at MGH, although several surgeons individually, including the one who operated on the paralyzed patient, remain under investigation.

In January of this year, the Massachusetts Board of Registration in Medicine approved a new regulation that would require surgeons to document each time they leave and enter the OR.  It would also require that the primary surgeon identify the backup surgeon who would assume responsibility if the first surgeon left the room.  Several state agencies must approve the regulations before they can go into effect at the end of March.  (State acts on simultaneous surgeries. Boston Globe, January 7, 2016).

The US Attorney’s fraud unit, together with the Massachusetts Attorney General’s office, subpoenaed 10 years of internal records from MGH last November.  During the summer, they interviewed several critics of double-booking, including the surgeon who was subsequently dismissed.  (See below for a discussion of the potential fraud issues.)

The US Senate Finance Committee, which has jurisdiction over Medicare and is headed by Sen. Orrin Hatch (R-UT), is investigating the subject of concurrent surgical cases.  Representatives of the American College of Surgeons (ACS) met with Committee staff on March 10, 2016.  An ACS panel is in the final stages of drafting guidelines. One of the panel members told Globe reporters that “the new guidelines will allow for small overlaps, such as when an OR team is closing a surgical wound in one room and the attending surgeon is starting a second operation in another room, but not simultaneous surgeries.”  Twenty hospitals, including MGH and the Cleveland Clinic, have received letters from the Committee requesting information on the frequency and safety of their use of the practice, and especially on patients’ knowledge and consequently their ability to give informed consent.  (Overlapping surgeries to face US Senate inquiry.  Boston Globe, March 13.)  No hearings have been scheduled yet.

The practice of concurrent surgeries is “common at some hospitals, restricted or banned at others, but seldom studied or discussed publicly,” according to a follow-up column in the Boston Globe (MGH records sought in double-booking review, November 14, 2015).  Is it safe?  One way to answer that question is to look at malpractice data.  The Doctors Company reviewed 7,330 surgery malpractice cases in its database for the eight-year period 2007-2015 and found no mention of concurrent surgery as a factor.  Robin Diamond, MSN, JD, RN, Senior Vice President, Patient Safety and Risk Management at The Doctors Company sees the potential for future litigation, however, and recommends that hospitals have policies that:

• Limit the surgeons permitted to perform concurrent surgeries to experienced physicians who have been deemed competent and have been privileged to do overlapping cases (Peter Dunbar, MD, of the Department of Anesthesiology at the University of Washington told us in a personal communication that the privilege must be carefully managed to deal with “over-confident surgeons who are inclined to do as many cases as possible and will very likely push the envelope”);
• Limit the extent to which procedures can overlap;
• Require a reason why concurrent surgeries are necessary.  “Busy OR schedules can be justification enough, Diamond says, but there should be some reason beyond the surgeon simply wanting to double up and get out of the hospital sooner;”
• Require full disclosure to the patient as part of the informed consent process;
• Document the surgeon’s exit and return times in the OR record;
• Define the requirement (if any) that a supervising or attending surgeon be “immediately available” to respond if the primary surgeon is out of the room, and
• Ensure good patient handoff procedures.

Karen S. Sibert, MD, who recently returned to an academic setting from private anesthesiology practice in Los Angeles, gave her perspective in her blog post Running Two ORs: Is it always wrong? on November 7, 2015.  Dr. Sibert answers her own question with an emphatic “no.”  She has never “seen a patient come to harm because the surgeon scheduled concurrent cases.”  It is not efficient to have a surgeon present while the anesthesiologist and the OR team are preparing the patient or the resident or fellow is closing the wound and the team is finishing the case:

Everything goes more smoothly when the surgeon is happily occupied in the case next door. … Often, the team is more efficient and at ease when the surgeon is occupied elsewhere while the patient wakes up and everything is done to move the patient safely out of the operating room. Then the operating room must be thoroughly scrubbed down before set-up can begin for the next case.

Dr. Sibert is unequivocal regarding the safety and efficiency of having the surgeon performing the critical portions of the first case while the second patient is being prepared—the scenario where “Once the critical work of the first case is complete, the surgeon can leave safely to begin work on the second one."  Moreover, it would be difficult to train new surgeons without giving them the opportunity to perform cases themselves, under appropriate supervision.  But Dr. Sibert is less convinced that long spine cases such as the ones that gave rise to so much attention at MGH, which typically require the surgeon to move back and forth between two ORs to attend to key portions of both, should be scheduled concurrently:

It would depend on the specific situation.  In surgical groups where partners have comparable skill and experience, it often doesn’t matter much which surgeon is listed as the primary surgeon and which one is listed as the assistant. They may work together consistently, and when they run two rooms, the quality of care is no different.

Sometimes, however, it does matter whether the surgeon is busy with critical portions of one case when he or she is needed in the other OR—the overlap is not good for the patient or the team.  The dissidents at MGH cited “cases where surgeons didn’t show up to operations, leaving the work to a resident or fellow; cases of patients lying under anesthesia for prolonged periods waiting for a doctor to arrive or return; cases where operating room staff were confused about who would do the operation.”

Most of the teaching hospitals in Boston allow minor overlap of cases, but only a few permit doctors to run two surgical cases simultaneously over an extended period.  Boston Medical Center only allows certain types of procedures to run concurrently, not including complex spinal surgery.  The Brigham and Women’s Hospital says it does not permit cases to run simultaneously for more than an hour, except in emergencies.  Such restrictions are in line with Medicare payment policy for teaching cases.

Compliance with Medicare Rules

Teaching anesthesiologists are familiar with the provision in the Medicare Claims Processing Manual (Chap. 12 Sec. 100.1.2.A.4) that covers the conditions for payment in concurrent resident cases:

To qualify for payment, the teaching anesthesiologist, or different anesthesiologists in the same anesthesia group, must be present during all critical or key portions of the anesthesia service or procedure involved. The teaching anesthesiologist (or another anesthesiologist with whom the teaching physician has entered into an arrangement) must be immediately available to furnish anesthesia services during the entire procedure. The documentation in the patient’s medical records must indicate the teaching physician’s presence during all critical or key portions of the anesthesia procedure and the immediate availability of another teaching anesthesiologist as necessary.

The corresponding provision for teaching surgeons is Section 100.1.2.A.2., which is more restrictive and does not allow surgeons to substitute in for each other:

In order to bill Medicare for two overlapping surgeries, the teaching surgeon must be present during the critical or key portions of both operations. Therefore, the critical or key portions may not take place at the same time. When all of the key portions of the initial procedure have been completed, the teaching surgeon may begin to become involved in a second procedure. The teaching surgeon must personally document in the medical record that he/she was physically present during the critical or key portion(s) of both procedures. When a teaching physician is not present during non-critical or non-key portions of the procedure and is participating in another surgical procedure, he/she must arrange for another qualified surgeon to immediately assist the resident in the other case should the need arise.

It is in light of this well-established Medicare payment rule that the U.S. Attorney will consider whether MGH can be charged with fraud.  Much will depend, of course, on which portions of each procedure were “critical” or “key” and required the physical presence of the primary attending.  Still, by stating that “When all of the key portions of the initial procedure have been completed, the teaching surgeon may begin to become involved in a second procedure,” Medicare makes it difficult to argue that the surgeon can go back and forth between concurrent cases as he or she judges appropriate.  The key portions of the first case must be completed before the surgeon becomes involved in another procedure.

Disclosure to Patients and Informed Consent

As noted above, a major focus of the Senate Finance Committee’s investigation is disclosure to the patient and informed consent.  Patients who know that their surgeon is going to be involved in other cases concurrently with their own might withhold their consent to the procedure, and therefore the potential concurrency is a material fact.  The letter to the 20 hospitals asks specifically whether they tell their patients that their operations will be performed concurrently.  Sen. Hatch wrote:  “We are concerned about reports of patients not being informed that they may be sharing their surgeon with another patient, and we are especially concerned by reports that, in some cases, steps have been taken to actively conceal this practice from patients.’’ 

The new regulation approved by the Massachusetts Board of Registration in Medicine would require surgeons to document each time they leave and enter the OR.  This would certainly make it easier for patients with adverse outcomes to prove that their primary surgeon was not in attendance at critical moments.   A documentation requirement might by its nature discourage the practice of running concurrent cases—with good or ill consequences; see Dr. Sibert’s blog entry, which states that “of course” patients should “be told that surgeons have scheduled two operating rooms.”  

In this era of transparency and of sensitivity to the patient experience, the benefits to be garnered by fully informing patients of who will be in the OR taking care of them throughout their procedures outweigh any possible advantages of non-disclosure.

The saga is not yet over—although MGH has put in place a new policy on concurrent surgeries; the orthopedic surgeon who has been sued by his quadriplegic patient who moved to Stanford last November, and the surgeon who brought the information to the Globe is now retired.  Anesthesiologists in some institutions will likely exercise heightened care to delay inducing anesthesia until they know when the surgeon will have completed all critical portions of his or her preceding case.  The public and professional attention that the issue has received ensure that discussions will continue as new policies take shape.