Hauntings in the Operating Room: Dissecting the Legal and Ethical Implications of “Ghost Surgeries”

by Madeline Brown, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

In 2019, eleven-year-old Jack Steiger underwent a surgery he had experienced before, with the same neurosurgeon who had successfully performed the procedure in 2015 and 2013.¹ Having developed trust in the practitioner with whom the procedure was scheduled, Jack’s family was confident that the surgery would, once again, be without complication. Unfortunately, they were not informed that their intentionally selected surgeon would not perform the surgery himself.² Following this unexpected shift in the agreed-upon procedure, Jack turned septic, his condition deteriorated quickly and, though he fortunately overcame the infection, he suffered potentially permanent injuries.³ The Steiger family had experienced a “ghost surgery,” in which a surgeon assigns a resident to perform a procedure without the patient’s knowledge, or books multiple surgeries at once, requiring other surgeons to perform the additional operations – without the patient’s knowledge or consent.⁴ Unfortunately, Jack Steiger is far from being the sole victim of ghost surgery.

Healthcare is one of the most highly regulated industries in the United States.⁵ Regardless, ghost surgeries are far more common than patients may expect. Few statistics exist confirming the extent of this misleading practice, but in 1996, a study found that fifty to eighty-five percent of operations were carried out by medical residents instead of the surgeons that patients carefully selected for their procedures.⁶ Ghost surgeries often go unnoticed, assuming they do not result in injury to the patient. Yet, patients are increasingly concerned about being the victims of ghost surgeries. Some patients, including Jack Steiger’s mother, contend that they would not agree to a procedure if they knew it would be performed by a resident or another surgeon they never met.⁷ However, the hesitancy of patients to subject themselves to surgeries performed by others begs the question: how are residents to gain crucial experience in the operating room?⁸ This tension between the interests of the medical industry and those of patients has existed for years and continues to be a growing concern today.

This article analyzes the legal and ethical implications of ghost surgeries, calling for increased attention to this practice by patients, medical practitioners, and the legal system. Part II provides background on ghost surgeries, including the practice’s history and the circumstances under which it occurs. Part III further analyzes the ethical implications of ghost surgeries, potential avenues for redress by victims, and options for improving the informed consent process to prevent harm to patients. Part IV concludes by calling for reform of the informed consent process and for increased accountability and transparency within the medical profession to improve patient-provider relationships.

II. Background

A. What Are Ghost Surgeries?

A “ghost surgery” occurs when a surgeon substitutes another surgeon or a resident to perform one of her own scheduled operations – without the knowledge or informed consent of the patient.⁹ Historically, “ghost surgery” referred to a general practitioner’s system of signing records, sending bills for operations, and assisting patients following their procedures, leading patients to believe that the practitioner completed their surgeries himself, when in reality, the procedures were performed by traveling surgeons the patients had never met.¹⁰ Over time, this practice evolved into something just as dangerous with more modern legal and ethical implications, often resulting in surgeons collecting fees for procedures they did not perform.¹¹ Today, ghost surgeries occur primarily in one of two scenarios (that may overlap in practice): a surgeon booked more than one surgery for the same time, requiring other surgeons or medical providers to perform their procedures, in part or in their entirety (i.e., “concurrent surgeries”); or a medical resident performs the surgery as a training opportunity, hopefully under the supervision of an experienced surgeon.¹²

B. The Issue of Concurrent Operations

Perhaps concerningly, “concurrent surgeries” – where a surgeon participates in more than one surgery at the same time – are hardly rare and are allowed under certain conditions at many prestigious hospitals.¹³ However, they are limited or banned in many other hospitals due to their potential to harm patients.¹⁴ Some hospitals view concurrent surgeries as a way to efficiently meet patient needs, especially when few in-demand specialists are available.¹⁵ Often, during concurrent surgeries, two or more complex procedures are handled in stages. The surgeon participates in one phase of a patient’s surgery, and then moves on to another patient.¹⁶

Allowing surgeons to book multiple surgeries for the same time may be part of a medical institution’s business model. Some medical systems use incentives that increase a doctor’s pay if she generates more profit, thus encouraging the double-booking of surgeries.¹⁷ In addition, surgeons scheduling multiple operations at the same time or instructing residents to perform procedures on their behalf often bill Medicare for work they did not do, further exposing themselves and their employers to potential ethical and legal violations.¹⁸

C. Ghost Surgeries in Teaching Hospitals

Ghost surgeries often occur in teaching hospitals, as surgeries are, understandably, utilized as a learning opportunity for medical residents.¹⁹ Residents can legally perform surgery, but only if: a surgeon supervises the surgery; and the patient gives the hospital informed consent, including written agreement to the participation of a resident in the patient’s treatment.²⁰

While teaching hospitals typically inform patients of the possibility of resident involvement in their treatment, the potential impacts of receiving care from a resident are often downplayed, or the disclosure is hidden in boilerplate language.²¹ A teaching hospital may provide its patients with general consent forms indicating that doctors-in-training may observe or provide some of the patient’s treatment.²² Often, patients sign these consent forms without considering the true implications of their consent, and certainly without considering the possibility that a medical resident will perform their surgery.²³ It is also possible that a patient may feel pressured to provide her consent while in a compromised situation – for example, a patient may consent to a last-minute surgery with little time to consider alternatives given the urgent nature of her condition and the necessity of the procedure. As such, she may sign a consent form quickly without fully understanding its terms.²⁴

To demonstrate the pervasive nature of this practice, Parkland Hospital, the University of Texas Southwestern Medical Center’s teaching hospital, serves as a prime example. Records from 2007 and 2008 show that 161 surgeries at the hospital were performed where the attending surgeon left a resident to operate without supervision.²⁵ This included a surgeon who left the operating room five minutes after an amputation procedure started, and a surgeon who left before a four-hour surgery even began.²⁶ Of the 200 hours of surgery accounted for in the records, attending surgeons were present only seventeen percent of the time.²⁷ In eighteen percent of the remaining cases where the attending surgeon was absent, the surgeon never appeared at any point during the procedure.²⁸

III. Discussion

A. A Problem of Medical Ethics

The practice of performing ghost surgeries is unethical and has been condemned by the American Medical Association and the American College of Surgeons.²⁹ According to Dr. Janis Orlowski, Chief Health Care Officer for the Association of American Medical Colleges, “It should be clear to the patient who is doing the procedure and who is [going to be] present.”³⁰ As declared by the American Medical Association in its Code of Medical Ethics, “except in emergency situations in which a patient is incapable of making an informed decision, withholding information without the patient’s knowledge or consent is ethically unacceptable.”³¹ Ethical obligations requiring open and honest communication between healthcare providers and patients serve a crucial public policy interest: the development of trust in the patient-provider relationship and respect for the patient’s autonomy in making her own choices about her medical treatment.³²

When a medical procedure occurs while a patient is anesthetized, there is little holding a surgeon accountable aside from her own “court of individual conscience” and other healthcare providers present during the procedure.³³ As the law currently exists, there are few explicit statutory protections against ghost surgeries. However, other causes of action, including claims for lack of informed consent and battery, may provide redress for patients victimized by this unethical practice.

B. Surgery by an Unauthorized Surgeon as Lacking Informed Consent

The law’s requirement of a patient’s informed consent prior to a medical procedure serves to address the power imbalance and knowledge gap existing between a physician and a patient.³⁴ According to the American Medical Association’s Code of Medical Ethics, informed consent requires communication between a patient and physician that includes an assessment of the patient’s ability to understand relevant medical information and the implications of her treatment options, and to make an independent, voluntary decision about the treatment she receives.³⁵ Specifically, the informed consent process should include: (1) a description of the proposed treatment; (2) an emphasis on the patient’s role in decision-making about treatment options; (3) a discussion of available alternatives; (4) a discussion of the risks associated with the treatment options; and (5) confirmation of the patient’s treatment preference, typically in writing.³⁶

Informed consent exists, in part, to encourage patients’ autonomy and their ability to make decisions concerning their medical treatment. Of course, future surgeons must have the opportunity to learn how to perform certain procedures, but there is an “unavoidable surgical learning curve.”³⁷ As long as this learning curve exists, “there is likely to be some increased risk to patients cared for by inexperienced residents compared with those exclusively cared for by experts.”³⁸ Such a risk must be disclosed to patients for the informed consent requirement to be satisfied. Although studies show that the involvement of surgical residents in operations generally does not negatively impact health outcomes, disclosure regarding a resident’s participation in the procedure should be standard practice.³⁹ As such, a surgeon who fails to disclose such crucial information to a patient should be subject to a lack of informed consent claim.

C. Surgery by an Unauthorized Surgeon as Battery

In the medical setting, battery claims are typically reserved for situations where: (1) the patient did not consent to any treatment at all; (2) the healthcare provider performed a completely different procedure than the patient consented to; (3) the healthcare provider performed a procedure on the wrong part of the body; or (4) a different provider, to which the patient did not consent, performed the procedure.⁴⁰ However, courts sometimes reject battery claims of the fourth type because the patient technically “consented” to the touching.⁴¹ Beyond the written consent received prior to the operation, there may be an argument of implied consent as well: the patient agreed to participate in a potentially dangerous surgery, implying their consent to the involvement of other parties in the procedure, as needed.⁴² However, a surgeon’s choice to exclude from the informed consent conversation a disclosure of a resident’s or another surgeon’s involvement in the patient’s procedure blurs ethical and legal lines.

A prima facie case for battery requires four elements: (1) the defendant performed an act; (2) the defendant intended to cause the contact with the victim; (3) the defendant’s contact with the victim was harmful or offensive; and (4) the defendant’s contact caused the victim to suffer a contact that was harmful or offensive.⁴³ There certainly could be a strong case, following a ghost surgery, for the patient’s recovery under a battery cause of action. The surgeon’s contact with the victim was intentional. A patient who did not suffer apparent physical harm resulting from someone else performing her surgery may still have suffered a “harmful or offensive” contact, given the patient never consented to being touched by that particular individual. Further, the patient was likely led to believe that another surgeon, with whom she may have developed trust via their professional relationship, was to perform the surgery.

A plaintiff pursuing a battery claim in the context of a ghost surgery has a key advantage over pursuing a lack of informed consent claim: they do not have to have experienced an injury resulting from the defendant’s conduct – the fact that a harmful or offensive touching occurred is enough.⁴⁴ A battery claim also cannot be overcome by the potential defense that the surgeon who actually performed the procedure is more experienced than the one to whom the patient consented.⁴⁵

D. South Korea’s Response to Ghost Surgeries – A Model for the United States?

Trust in South Korea’s world-class medical system has weakened following an increase in the occurrence of ghost surgeries, including violations as egregious as the performance of complicated surgeries by unsupervised assistants.⁴⁶ In response, as of 2021, South Korean law requires cameras in all operating rooms where patients are treated under general anesthesia.⁴⁷ In just two years, the South Korean medical system has experienced negative effects following the enactment of the new surveillance requirements, including residents choosing not to apply to surgical departments to demonstrate their disapproval of the new rules.⁴⁸ Eventually, this could negatively impact South Korea’s medical system, should residents continue to choose other departments in protest.⁴⁹

The American College of Surgeons has cautioned against this practice, suggesting that, while the use of cameras in operating rooms may deter malpractice, it may also further harm morale among medical professionals, undermine patients’ trust in doctors, and violate patient privacy.⁵⁰ Regardless, some states, including Wisconsin, have proposed similar statutes requiring the installation of cameras in operating rooms.⁵¹ States have refused to pass several similar bills under the reasoning that such requirements would promote patients’ distrust of the medical system.⁵²

Supporters of such legislation, however, insist that taking steps, such as requiring video surveillance in operating rooms, would protect individual patients while generally boosting the public’s trust in doctors.⁵³ An added benefit is that videos taken during operations may provide malpractice victims with video evidence to use in court.⁵⁴

In the United States, where the right to privacy is the focus of countless legal battles and the judicial system is already overwhelmed with claims, the enactment of a law like South Korea’s may not be realistic at this time. However, something must be done to hold medical practitioners accountable and ensure that patients are fully informed about the details of their upcoming surgery.

E. Additional Options for Preventing Harm to Patients

Perhaps a more realistic way to improve patient protections and ensure fully informed consent to surgical procedures is to alter expectations for informed consent and surgeons’ conversations with patients about treatment options. Generally, “no one wants a resident to learn on them.”⁵⁵ However, hands-on learning is crucial for the next generation of medical professionals. Thus, as suggested by the Association for Academic Surgery, a shift in mentality regarding the role of residents in surgery – and increased honesty regarding their involvement – is crucial.⁵⁶ A patient must be able to make an educated decision for herself as to whether she is comfortable with a resident’s involvement in her procedure. Further, if she is, attending surgeons must be held accountable to their legal obligation to supervise residents in the operating room and to ensure that a resident’s learning opportunity does not result in detriment to the patient.⁵⁷

Potential reforms include holding teaching hospitals to a higher standard when it comes to obtaining informed consent from patients.⁵⁸ New requirements could include that the resident visit the patient with the attending surgeon prior to the procedure, that the attending surgeon clarify the resident’s specific role in the surgery, and that the patient be assured that the attending surgeon will be present for the duration of the procedure.⁵⁹ Further, if a patient refuses the resident’s participation in the operation, the responsible practitioner may comply with the patient’s choice, decline to participate in the patient’s care (subject to her organization’s policies), or provide additional information to the patient to assure her that the resident’s involvement in the procedure is in everyone’s best interest.⁶⁰

IV. Conclusion

In conclusion, there is a need for reform in the medical system regarding the informed consent process to prevent future harm resulting from ghost surgeries. Though medical residents play a crucial role in the success of teaching hospitals, and their learning is crucial to the future success of the American medical system, their hands-on learning opportunities must not come at the expense of patients’ health. While it may not be in the best interest of medical practitioners and patients to adopt an approach like that of South Korea (i.e., requiring the installation of surveillance equipment in operating rooms), changes must be made to protect the rights and lives of patients, including more robust expectations for obtaining informed consent and increased transparency between patients and their medical providers.

Cover Photo generated by DALL-E 2 AI System

Madeline Brown

Madeline Brown is a 3L at the University of Cincinnati College of Law and the Editor-in-Chief of the Law Review’s 93rd Volume. Prior to law school, she received a B.B.A. in Finance and a B.A. in International Relations from the College of William & Mary and worked in life sciences compliance consulting. In addition to her involvement in Law Review, Madeline is passionate about public policy and non-profit work.

References

1
Jason Scott & Jessica Schmidt, Ghost Surgeries: Is Your Hand-Picked Surgeon Performing Your Procedure?, Fox 19 Now (Sept. 21, 2020, 11:00 PM), https://www.fox19.com/2020/09/21/ghost-surgeries-is-your-hand-picked-surgeon-performing-your-procedure/.
2
Id.
3
Id. See also Lindsay Oliver, Family Claims Ghost Surgery Caused Son’s Complications, Warns Others How to Prevent It, Spectrum News 1 (Oct. 10, 2020, 5:00 AM), https://spectrumnews1.com/oh/columbus/news/2020/10/09/family-says-son-suffered-complications-from–ghost-surgery-.
4
Scott & Schmidt, supra note 1.
5
A Guide to Healthcare Compliance Regulations, Mich. St. U. (July 12, 2023), https://www.michiganstateuniversityonline.com/resources/healthcare-management/a-guide-to-healthcare-compliance-regulations/.
6
Oliver, supra note 3.
7
Id.
8
Id.
9
Nancy E. Epstein, Ghost Surgery, Including Neurosurgery and Other Surgical Subspecialties, Surgical Neurology Int’l (Aug. 9, 2019), https://surgicalneurologyint.com/surgicalint-articles/ghost-surgery-including-neurosurgery-and-other-surgical-subspecialties/.
10
James W. Jones, Laurence B. McCullough & Bruce W. Richman, Whodunit? Ghost Surgery and Ethical Billing, 42 J. of Vascular Surgery 1239, 1239 (2005).
11
Id.
12
John Holland, Doctors Ghost Patients, Charge for Surgeries Left to Residents, U.S. L. Wk. (Aug. 31, 2023, 5:00 AM), https://news.bloomberglaw.com/us-law-week/doctors-ghost-patients-charge-for-surgeries-left-to-residents; see also Epstein, supra note 9.
13
Jenn Abelson, Jonathan Saltzman, Liz Kowalczyk & Scott Allen, Clash in the Name of Care, Boston Globe, https://apps.bostonglobe.com/spotlight/clash-in-the-name-of-care/story/.
14
Id.
15
Id.
16
Id.
17
Id.
18
Holland, supra note 12.
19
Debra Dunn, Ghost Surgery: A Frank Look at the Issue and How to Address It, 102 AORN J. 602, 607 (2015).
20
Charlotte Huffman & Mark Smith, ‘Ghost Surgery’ and Informed Consent Fraud is Common, Am. Patient Rts. Ass’n (Nov. 21, 2019), https://www.americanpatient.org/ghost-surgery-and-informed-consent-fraud-is-common/ (to qualify for reimbursement by Medicare and Medicaid, the federal government requires a surgeon to be “physically present” during as operation as the surgery’s supervisor).
21
Diane Suchetka, How to Keep That Doctor-In-Training From Being Your Ghost Doctor in Surgery,Cleveland.com (June 22, 2010, 1:15 PM),https://www.cleveland.com/healthfit/2010/06/patients_have_specific_options.html.
22
Id.
23
Id.
24
Huffman & Smith, supra note 20.
25
Id.
26
Id.
27
Id.
28
Id.
29
Dunn, supra note 19, at 604.
30
Huffman & Smith, supra note 20.
31
Withholding Information from Patients, Am. Med. Ass’n Code of Med. Ethics, https://code-medical-ethics.ama-assn.org/ethics-opinions/withholding-information-patients (if information is withheld in an emergency, physicians should convey the withheld information once the emergency has been resolved).
32
Id.
33
Jones, McCullough & Richman, supra note 10, at 1239.
34
Mark A. Hall, David Orentlicher, Mary Anne Bobinski, Nicholas Bagley & I. Glenn Cohen, Health Care L. and Ethics 152 (Rachel E. Barkow et al. eds., 9th ed. 2018).
35
Parth Shah, Imani Thornton, Danielle Turrin & John E. Hipskind, Informed Consent, StatPearls Publ’g(June 5, 2023), https://www.ncbi.nlm.nih.gov/books/NBK430827/.
36
Id.
37
Ayman Naseri, Patient Consent for Resident Involvement in Surgical Care, 130 Arch Ophthalmol. 917 (2012).
38
Id.
39
Adrienne N. Cobb, Emanuel Eguia, Haroon Janjua & Paul C. Kuo, Put Me in the Game Coach! Resident Participation in High-Risk Surgery in the era of Big Data, J. of Surgical Rsch. 308, 316 (2018).
40
Hall et al., supra note 34, at 173.
41
Id. at 172-173.
42
Battery, Cornell L. Sch. L. Info. Inst., https://www.law.cornell.edu/wex/battery.
43
Id.
44
Thomas Lundmark, Surgery by an Unauthorized Surgeon as a Battery, 10 J. of L. and Health 287, 288 (1995).
45
Id.
46
John Yoon, South Korea Turns to Surveillance as ‘Ghost Surgeries’ Shake Faith in Hospitals, N.Y. Times (May 13, 2022), https://www.nytimes.com/2022/05/13/world/asia/south-korea-cameras-ghost-surgery.html.
47
Id.
48
Tibi Puiu, South Korea Fits Big Brother In Operating Rooms to Stop Rampant ‘Ghost Surgeries’, ZME Science (May 13, 2022), https://www.zmescience.com/science/south-korea-fits-big-brother-in-operating-rooms-to-stop-rampant-ghost-surgeries/.
49
Id.
50
[Id.
51
Rachel Blumberg, Will the United States Follow in South Korea’s Footsteps? Surveillance Cameras in Operation Rooms, N. Ky. L. Rev.: Blog, https://northernkentuckylawreview.com/blog/will-the-united-states-follow-in-south-koreas-footsteps-surveillance-cameras-in-operation-rooms#_edn5.
52
Id.
53
Id.
54
Id.
55
Huffman & Smith, supra note 20.
56
Dawn Elfenbein, “But, You’re The One Doing My Surgery, Right?” How I Talk With My Patients About Resident Autonomy and Patient Safety, Ass’n for Acad. Surgery (June 1, 2020), https://www.aasurg.org/blog/but-youre-the-one-doing-my-surgery-right-how-i-talk-with-my-patients-about-resident-autonomy-and-patient-safety/.
57
Huffman & Smith, supra note 20.
58
Richard Cahill, Obtaining Informed Consent in Teaching Institutions, The Dr. Co. (Mar. 2023), https://www.thedoctors.com/articles/obtaining-informed-consent-in-teaching-institutions/.
59
Id.
60
Id.