The Famous Dr. DeBakey and His Two Controversial Practices

Recently, there has been a great deal of press, as well as litigation, involving two things: so-called “overlapping surgery,” and requests by patients to record their encounters with their physicians and with their surgical procedures. Many years ago, in the 1970s, a world-famous cardiac surgeon at Baylor University, Michael DeBakey, at least anecdotally, did both things.

Dr. DeBakey developed, improved and used Dacron Grafts for cardiac surgeries, and was always on the cutting edge of the science. He was known as the “Texas Tornado,” not only because of the incredibly long hours he spent in operating rooms, but for how he went from operating room to operating room doing only the “critical portion” of very complex cardiac procedures. In addition, Dr. DeBakey habitually had a cameraman in the operating room recording these cardiac procedures. His system involved a camera suspended above the operating table, focusing the lens on the procedure. Dr. DeBakey is not alone: In fact, many surgeons film complex procedures, from neurosurgery to general surgical and orthopedic surgical procedures.

How might these two practices ' the employment of overlapping surgery and video recording ' affect physicians, patients and their attorneys when accusations of medical malpractice arise?

'Overlapping Surgery': Two Ways to Look at It

“Overlapping Surgery” (also known as “Concurrent Surgery”) is the term used to describe a situation where a surgeon leaves the operating room in the final stages of a procedure to begin another one in a nearby operating room. Dr. DeBakey, as mentioned above, is reputed to have done large numbers of surgeries in the course of a day, going from one patient to the next. His team prepared the patient, then Dr. DeBakey came to do the parts of the procedure: 1) that were most important to the patient; 2) with which he was intimately familiar; and 3) that in many cases, he was a pioneer in performing. This resulted in many more patients being able to have these life-saving and life-lengthening operations, and proved to be a benefit to the patient population at large.

So, from the medical establishment's standpoint, the theory is that the practice of overlapping surgery makes efficient use of the surgeon's time.

As we all know, if the patient undergoing surgery is a Medicare patient, there must be certification by the surgeon that he or she was “present for all critical aspects of the surgery.” There is no requirement, however, that the surgeon be present for the non-critical aspects of the procedure. Even Medicare acknowledges the modern reality: that cases in which surgeons who concentrate on one patient at a time probably have not been the norm for many, many years.

The lay person, however, is not likely to understand or particularly like the concept that his surgeon will not being present in the operating room from the beginning to the end of the procedure. The fact that it does happen can come as a very unpleasant surprise, so it's an issue that should be timely addressed with the patient. Unfortunately, because of inadequate or poorly documented informed consent, patients and/or their lawyers sometimes learn post -surgery that the surgeon was not present for the entire procedure. This is not the optimum time for such a revelation, as it can induce a sense of betrayal ' a key emotion that may lead an unhappy patient to seek redress through the courts for perceived medical wrongs.

Of course, while a surgeon's failure to inform the patient of an intent not to remain in the operating room throughout the procedure can cause hard feelings, there are situations that can further complicate the issue and raise additional liability concerns for doctors and their lawyers. For instance, there have been reported cases (several of which I have been personally involved with) where a surgeon left the operating room for reasons other than moving on to another patient's case. In one case, a surgeon left a procedure to go to the bank, driven by an orthopedic equipment salesman. Even though the patient probably suffered no harm, it became a cause celebre. This attracted a great deal of publicity and made it extremely difficult to defend the surgeon. The case also generated several other suits against this surgeon from people who felt that their orthopedic surgery results were not optimal because the doctor might not have been present throughout the entire procedure.

Less notorious, yet similar cases abound. For example, this author's firm was involved in two disciplinary cases in which surgeons left the operating room early; one to pick up a birthday cake for his spouse, and another to teach a class. This is a totally different situation from the controlled atmosphere in the hospital setting where there are competent surgeons on a team who are prepared to do some of the initial parts of a surgery and the closing parts, leaving the highly qualified expert to deal with complicated issues.

Addressing Patient Concerns

Medical staff opinion has been divided around the country in recent years regarding overlapping surgeries. States have not required disclosure of the practice as of yet, but one entity, the Massachusetts State Board of Registration in Medicine, has begun the process of acting with respect to simultaneous surgeries amid the fear of double-booking. See http://bit.ly/1VqGgmg. In early January of this year, they voted to institute new regulations that would require surgeons to document each time they enter and leave the operating room. The name of any replacement surgeon would also need to be disclosed to the patient. These rules, which appear to be the first of their kind nationally, were passed with relatively little debate by the medical board. They will need approval of other state agencies before they can go into effect, though, since the Board of Registration in Medicine does not control or regulate hospitals or freestanding clinics.

More recently, Sen. Orin Hatch (R-UT) asked 20 hospital systems, including The Cleveland Clinic and Massachusetts General Hospital, to provide the U.S. Senate with a breakdown of the number of overlapping surgeries they perform, as well as a clarification as to the patient disclosures given prior to those surgeries. The American College of Surgeons is also working on guidelines governing the practice of overlapping surgery.

Even without regulatory requirements, it seems clear that medicine needs to do a better job of documenting the informed consent process between the surgical patient and the surgeon to clearly disclose at least two facts: that there will be a full surgical team (or even two teams), and that a responsibly performed surgical procedure is not dependent upon its being fully executed by one particular surgeon. A very robust informed consent process would benefit both patients and physicians by eliminating a nasty surprise that could cause outrage in patients ' and juries.

In next month's issue, we will consider Dr. DeBakey's other controversial practice: the filming of surgical procedures.

Edward D. McCarthy is a partner in the firm of McCarthy Bouley Barry & Morgan, specializing in medical malpractice defense, product liability, and general health and hospital law. He is the former City Solicitor of Cambridge, MA, and General Counsel to the Cambridge Public Health Commission, and author of The Malpractice Cure: How to Avoid the Legal Mistakes that Doctors Make.