Mass General ‘Not an Outlier’ in Double-Booked Surgeries

A lawsuit alleging that surgeons at Massachusetts General Hospital (MGH) performed overlapping surgeries, violating federal Medicare and Commonwealth of Massachusetts Medicaid rules, has reached its conclusion, to the tune of a $14.6 million settlement.

The hospital must pay the federal and state governments, and also make one thing very clear on patient consent forms: for certain parts of a procedure, surgeons might not actually be in the room.

In the lawsuit, whistleblower and anesthesiologist Lisa Wollman, MD, alleged that surgeons performing procedures that she took part in from 2011 to 2013 would double-book patients. In a practice known as “running two rooms,” or “concurrent” surgeries, a teaching surgeon has residents or fellows perform parts of the surgery while they are not physically present. The surgeon may perform parts of another surgery elsewhere, while both — or in some cases, three — patients are under anesthesia.

The lawsuit alleged that MGH did not receive informed patient consent for these practices, and left patients under anesthesia for longer than medically necessary.

In many cases, patients booked for surgery with a specific doctor weren’t aware that the surgeon wouldn’t be there from start to finish, and that some parts of the procedure may be performed by trainees.

“MGH’s position essentially was that because they tell patients that it’s a teaching hospital, and that others may be part of the surgery, it’s implicit that their doctor may not be there for the entirety of the surgery,” said Reuben Guttman, of Guttman, Buschner & Brooks, the lead counsel for Wollman.

While MGH’s consent forms did change a number of times up through 2014, explaining that other medical professionals might perform some aspects of a procedure, the form failed to mention that a surgeon may be working on two or more surgeries at the same time, according to the complaint.

Mass General Brigham, the integrated healthcare system comprised of MGH and Brigham & Women’s Hospital, agreed to change its consent forms as part of the settlement, which will now read, in part, “My surgeon has informed me that my surgery is scheduled to overlap with another procedure she/he is scheduled to perform. I understand that this means my surgeon will be present in the operating room during the critical parts of my surgery but may not be present for my entire surgery.”

The lawsuit also alleged that MGH profited from this practice.

Hospitals typically can’t bill for services provided by residents and fellows, but MGH was able to collect reimbursement from Medicare and Medicaid for the double-booked surgeries under the teaching surgeons’ names, even though they could have been physically absent for significant periods of time.

“When you start getting publicity around the practice, you expose how pervasive the practices [are],” said Guttman. “Medicine is about money these days. I mean, it’s heavily influenced by money.”

The practice, however, is not uncommon. “MGH is not an outlier in the sense that it did it [concurrent surgeries],” Guttman added, citing similar cases in Arizona, Pennsylvania, and New York. And, to varying degrees, some overlap at the margins of a surgery is expected. A trainee might close up the surgical site following a procedure, for example, while a doctor steps outside to speak with the patient’s family.

Exactly how widespread the practice is remains unclear. In 2016, the Senate Finance Committee surveyed 20 teaching hospitals on concurrent surgeries for a report. The responding hospitals reported that up to 33% of surgeries performed from January 2015 to March 2016 had some degree of overlap.

Overlapping surgeries are normalized enough for the CMS claims processing manual to define the terms under which such surgeries can be billed. They require that all critical parts of a surgery be performed one at a time. In addition, another supervising physician must step in when a primary surgeon steps out. The American College of Surgeons also has an entire section devoted to the circumstances under which surgery overlap is allowed.

With the new, more explicit patient consent forms, Guttman said doctors may choose to cut back on double-booking. “It’s not only to let people know,” he said of the updated consent language. “But the reality is, if doctors have to communicate that to their patients, they’re probably just not going to do it.”

From the plaintiff’s perspective, the more transparency, the better. “People think litigation, in some respects, is adversarial. But in many respects, it’s also just a catalyst to do better,” noted Guttman. “In this sense, the litigation was a catalyst to do better because the new leadership has adopted this change.”

MGH did not respond to a request for comment in time for publication.