Simultaneous Surgeries Create Potential Liability for Medical Malpractice, Fraud

The practice of concurrent and overlapping procedures by medical surgeons has come into the spotlight over the past two years due to injuries resulting from the practice. Since this practice can sometimes involve fraud or medical malpractice, we thought we would take a look at it here and speak about how it interacts with our law practice.

These practices are still relatively obscure outside of the medical community. A March 2017 report by Fox News found that only 4% of 1,454 people surveyed were aware of what the terms meant.

So what are these surgical practices?

In short, the practices involve a surgeon scheduling and conducting operations on two different patients during the same period of time.

An overlapping surgery involves an operation performed by the same primary surgeon that is performing an operation on another patient and the surgeries overlap with each other at some point in time. The practice of overlapping surgery will often mean that preparation of one patient for surgery is beginning while a surgeon or surgical team is finishing care of another patient.

Concurrent surgery involves a surgery where the primary surgeon is responsible for two surgeries and some or all of the “critical parts” of the operations overlap.

Controversy over the practice of simultaneous surgeries came to light around the beginning of last year when a Massachusetts General patient brought a medical malpractice lawsuit alleging that he suffered an injury in a simultaneous surgery. More recently, federal prosecutors are reportedly investigating a top billing surgeon in New York for running concurrent prostate surgeries, according to the Boston Globe.

Where is double-booking done?

A Washington Post article published in July 2017 titled, “Is your surgeon double-booked?” identified the types of practices where running two rooms was more common. One area where it is seen is in teaching hospitals, where senior attending surgeons delegate parts of the surgery to residents or fellows. The practice is more common in certain specialties, such as neurosurgery, cardio surgery and orthopedics.

How could double-booking be medical malpractice?

One way that the practice could be malpractice is if the doctor does not obtain informed consent. In April 2016, the American College of Surgeons updated its Statements on Principles to require the patient to be informed beforehand when there will be overlapping operations as part of obtaining patient consent.

In circumstances where a patient is not advised of the key risks of a procedure and they end up suffering harm as a result of the procedure, they may have a viable medical malpractice lawsuit.

If a patient is injured because trainees are alone for critical portions of the surgery or the primary surgeon was not truly available, that could also form the basis of a medical malpractice claim.

Additionally, the performance of overlapping or concurrent surgeries can lead to issues as a result of unplanned circumstances that can develop during a surgery. For example, if a patient is under anesthesia longer longer than anticipated because the surgeon is performing surgery on another patient, any injuries as a result of the unnecessary anesthesia could be the basis for a medical malpractice lawsuit.

When is concurrent surgery fraud?

Medicare allows a teaching physician to bill Medicare for two overlapping surgeries if the physician is physically present during all critical portions of the procedure and immediately available during the entire procedure. CMS’s Medicare Claims Processing Manual defines the critical portion to state that it does not generally include the opening or closing and it concerns the parts which the surgeon determines to be critical.

According to footnote 13 of the Senate Finance Committee Staff report, a surgeon is not immediately available if they are performing another procedure. If circumstances prevent immediate availability, the doctor must arrange for another qualified surgeon to be immediately available to assist during the non-critical or non-key portions. ACS guidance defines “immediate availability” as reachable through a paging system or other electronic means.

If a surgeon at a teaching hospital bills Medicare for a procedure where he or she is not present for the critical parts or not immediately available (without assigning another surgeon to be immediately available), then billing for the procedure could bring liability under the False Claims Act. ┬áThe FCA is the nation’s leading law in the fight against health care fraud and provides rewards for whistleblowers to bring such evidence to the attention of the Department of Justice.

What Happens if a Surgeon is Performing Overlapping or Concurrent Surgery?

If you discover that your surgeon performed a concurrent surgery without consent or failed to be present for critical aspects of the surgery, call McEldrew Young at 1-800-590-4116 for a free, initial consultation.