Massachusetts Medical Board new rules on simultaneous surgeries

[Raryn]

Came across Massachusetts medical board approves rules on simultaneous surgeries - The Boston Globe and wanted to see what you all thought - simultaneous surgery has been an interested point of discussion in this forum before (ex: Another article targeting simultaneous surgery ).

This particular approach seems to be incredibly heavy handed - they want to be incredibly micromanagey and require documentation of every single time that the surgeons leave the room for any reason for any length of time, but after the recent controversies that is what they thought was necessary.

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[thedrjojo]

Came across Massachusetts medical board approves rules on simultaneous surgeries - The Boston Globe and wanted to see what you all thought - simultaneous surgery has been an interested point of discussion in this forum before (ex: Another article targeting simultaneous surgery ).

This particular approach seems to be incredibly heavy handed - they want to be incredibly micromanagey and require documentation of every single time that the surgeons leave the room for any reason for any length of time, but after the recent controversies that is what they thought was necessary.

As commenters in the article said, most EMRs the nurses already do this, at least in my hospitals. I don't see a problem with it being documented. There isn't a mandate for how long they need to be in the room, when they can leave, etc etc. Maybe it's cause I'm a new attending, but I haven't gotten into the habit of leaving the room until closing. Even if I don't scrub 50% of the time, I'll still be there checking in on the chief every so often. So I'd be documented in the room and my chief would still learn autonomy and I'd have direct observation of it.

 

[droliver]

An attending surgeon supervising residents should never leave the OR and leave residents continuing to operate. Residents do not have independent operating privileges, and the staff policies of every teaching hospital in the country spells that out in 2019. The lawyers have seen to that, and in every adverse event at a teaching hospital, the presence of the attending surgeon is one of the things that is zeroed in on by plaintiff attorneys. There is no legal defense for surgical complications that occur with you not physically present in the room. The public as well does not tolerate the traditional way teaching hospitals ran with residents having no direct supervision in the OR. You’re seeing lawsuits now involving central line complications on the floor by residents, with lack of supervision a key argument in the cases

 

[swoopyswoop]

An attending surgeon supervising residents should never leave the OR and leave residents continuing to operate. Residents do not have independent operating privileges, and the staff policies of every teaching hospital in the country spells that out in 2019. The lawyers have seen to that, and in every adverse event at a teaching hospital, the presence of the attending surgeon is one of the things that is zeroed in on by plaintiff attorneys. There is no legal defense for surgical complications that occur with you not physically present in the room. The public as well does not tolerate the traditional way teaching hospitals ran with residents having no direct supervision in the OR. You’re seeing lawsuits now involving central line complications on the floor by residents, with lack of supervision a key argument in the cases

By that logic an attending needs to stay in the room while a PGY6 closes the skin, puts the dressing on, and possibly even until the patient is extubated (in case something goes wrong).

 

[Medstart108]

An attending surgeon supervising residents should never leave the OR and leave residents continuing to operate. Residents do not have independent operating privileges, and the staff policies of every teaching hospital in the country spells that out in 2019. The lawyers have seen to that, and in every adverse event at a teaching hospital, the presence of the attending surgeon is one of the things that is zeroed in on by plaintiff attorneys. There is no legal defense for surgical complications that occur with you not physically present in the room. The public as well does not tolerate the traditional way teaching hospitals ran with residents having no direct supervision in the OR. You’re seeing lawsuits now involving central line complications on the floor by residents, with lack of supervision a key argument in the cases

This sounds like the same kind of doctor who will then turn around and say young surgeons simply "don't have the skill needed to operate independently", let us extend their training by a few more years. Also the sort of doctor who is happy to let their junior attending perform their first independent aortic case on joe blo down the street but if heaven forbid it's their own family member, only the most experienced for them..

This is why residency gets longer and longer each year. Turns surgeons into pilots and we'll have a massive shortage of surgeons in no time.

 

[Dr.LeoSpaceman]

Residents do not have independent operating privileges, and the staff policies of every teaching hospital in the country spells that out in 2019.

This is not the case in our system. "Direct supervision" is required for "key" portions of procedures. Other portions may be performed with "direct supervision immediately available" at the discretion of the attending. That obviously leaves some amount gray area regarding what the key steps are, and where the attending actually is (in an OR down the hall vs. an office down the hall). Also included is that the resident has demonstrated ability commensurate with that amount of autonomy. I don't doubt a lawyer could make a case against using any one of those points, but it has not yet made our hospital mandate direct supervision at all times.

 

[Jolie South]

This is not the case in our system. "Direct supervision" is required for "key" portions of procedures. Other portions may be performed with "direct supervision immediately available" at the discretion of the attending. That obviously leaves some amount gray area regarding what the key steps are, and where the attending actually is (in an OR down the hall vs. an office down the hall). Also included is that the resident has demonstrated ability commensurate with that amount of autonomy. I don't doubt a lawyer could make a case against using any one of those points, but it has not yet made our hospital mandate direct supervision at all times.

I was lucky to have this as the case in residency. I learned infinitely more by having an attending in and out to check than having an attending as a passive assistant the whole case as I did in fellowship with a number of my attendings.

What does it say about a program that isn’t comfortable leaving its trainees in the OR alone on bread and butter cases?

 

[Dr.LeoSpaceman]

I'll add though that in the context of a discussion about concurrent cases, the idea of running two rooms simultaneously without another privileged faculty available member is not generally permitted. If you have two rooms that start simultaneously, it's harder to argue that as the supervising attending you were present for all key portions of both procedures. People here will stagger two rooms, and even then only for procedures expected to be straightforward. But that is as much about OR efficiency as appropriate supervision.

 

[Wordead]

We run 2 rooms simultaneously often (if not super complex cases) and usually the PGY4/5 is alone with the attending popping over at moments. You have to trust the resident will let you know before theyre in trouble or if you're getting to critical areas - ie for a neck dissection I usually give the attending a heads up during neck dissections before I have a blade on the jug.

I would echo sentiments above, I feel I learned more and became a much better surgeon when left to struggle for a bit. It's hard for an attending to sit there and watch you fumble when one spread is all they would need. It's rather uncommon that the resident does something truly stupid - usually everyone is a lot more careful when nobody else is in the room.

 

[droliver]

What does it say about a program that isn’t comfortable leaving its trainees in the OR alone on bread and butter cases?

It says that the program has acknowledged that the way things used to be done at teaching hospitals are often no longer acceptable ethically and that it exposes the facilities and attending surgeon to massive legal liability to leave trainees unsupervised.

These articles from the ivory towers in Boston should have been enough to drive that point home. These were senior residents and fellows running into catastrophic complications on "bread and butter" spine cases. The fact the attending surgeon was not in the room has led to tremendous public outcry, political fallout, and 8 figure checks be written to settle cases

 

[Vandalia]

These were senior residents and fellows running into catastrophic complications on "bread and butter" spine cases. The fact the attending surgeon was not in the room has led to tremendous public outcry, political fallout, and 8 figure checks be written to settle cases

And what will happen 90 days later when they run into those catastrophic complications on their own after they graduated and don't have attending backup? I would not (did not) grant privileges to a new surgeon who did not have extensive, independent, "chief level" experience at their residency program. Don't shift all the risk to the non-academic patients.

 

[Jolie South]

It says that the program has acknowledged that the way things used to be done at teaching hospitals are often no longer acceptable ethically and that it exposes the facilities and attending surgeon to massive legal liability to leave trainees unsupervised.

These articles from the ivory towers in Boston should have been enough to drive that point home. These were senior residents and fellows running into catastrophic complications on "bread and butter" spine cases. The fact the attending surgeon was not in the room has led to tremendous public outcry, political fallout, and 8 figure checks be written to settle cases

I think there is a tremendous difference between the “old days” where the attending was at home sleeping during the case and now where the attending is in the lounge intermittently checking in. We can’t teach people without giving them some independence.

 

[cpants]

I think there is a tremendous difference between the “old days” where the attending was at home sleeping during the case and now where the attending is in the lounge intermittently checking in. We can’t teach people without giving them some independence.

I agree with you. It is vital to give some independence in the operating room, and if you aren't comfortable with that, you really should not be an academic surgeon. And as a patient, if you aren't comfortable with that you probably shouldn't be at a teaching hospital. How are the residents supposed to learn? Surgeons should be up front about this with the patients and include it on the consent form.

I also think that there is a big difference between being "immediately available" and being scrubbed into another major surgery, which is probably ethically questionable. Having a cup of coffee down the hall or even being scrubbed on lumps and bumps type cases in the next room is probably fine in my opinion.

 

[droliver]

We can’t teach people without giving them some independence

Being in the room during the case does not mean “not giving someone independence”. If you’re an attending physician supervising residents, you need to be in the room SUPERVISING your resident during surgery. That’s both common sense, and now the evolving standard of care in court.

Regardless of how one feels, the compliance officers, lawyers, and insurance companies have established how this is going to be. I just sat through our annual insurance company required risk management seminar where this was addressed. It was emphasized in an answer to this scenario that there IS NO DEFENSE as the physician/surgeon of record, if a surgery complication occurs without you present in the room.

 

[thedrjojo]

Being in the room during the case does not mean “not giving someone independence”. If you’re an attending physician supervising residents, you need to be in the room SUPERVISING your resident during surgery. That’s both common sense, and now the evolving standard of care in court.

Regardless of how one feels, the compliance officers, lawyers, and insurance companies have established how this is going to be. I just sat through our annual insurance company required risk management seminar where this was addressed. It was emphasized in an answer to this scenario that there IS NO DEFENSE as the physician/surgeon of record, if a surgery complication occurs without you present in the room.

I get what you are saying in the legal sense, but from a common sense stance, what magically changes from June 30th and July 1st besides calling them an attending and calling them a chief resident? You really think its Common sense that the first time a surgeon has any independence or not having anyone SUPERVISING them is when they are an attending? Are you wanting to just essentially mandate a transition to practice fellowship for anyone going into practice? What about fellow?

There needs to be a full reworking of the entire system, and graded responsibility, and documentable and demonstratable and recreatable metrics that if someone demonstrates competence in aspects of a case they should be allowed to do them and eventually do them unsupervised. This happens with consults, bedside procedures, etc, and that is legal (unless you are also advocating that an over night ER consult needs to be physically seen by an attending as well, and that cutaneous abscess can't be drained without direct supervision)....

 

[cpants]

I get what you are saying in the legal sense, but from a common sense stance, what magically changes from June 30th and July 1st besides calling them an attending and calling them a chief resident? You really think its Common sense that the first time a surgeon has any independence or not having anyone SUPERVISING them is when they are an attending? Are you wanting to just essentially mandate a transition to practice fellowship for anyone going into practice? What about fellow?

There needs to be a full reworking of the entire system, and graded responsibility, and documentable and demonstratable and recreatable metrics that if someone demonstrates competence in aspects of a case they should be allowed to do them and eventually do them unsupervised. This happens with consults, bedside procedures, etc, and that is legal (unless you are also advocating that an over night ER consult needs to be physically seen by an attending as well, and that cutaneous abscess can't be drained without direct supervision)....

Yea, something tells me the supervision rules for 2am butt pus might be a little looser.

 

[Jolie South]

Being in the room during the case does not mean “not giving someone independence”. If you’re an attending physician supervising residents, you need to be in the room SUPERVISING your resident during surgery. That’s both common sense, and now the evolving standard of care in court.

Regardless of how one feels, the compliance officers, lawyers, and insurance companies have established how this is going to be. I just sat through our annual insurance company required risk management seminar where this was addressed. It was emphasized in an answer to this scenario that there IS NO DEFENSE as the physician/surgeon of record, if a surgery complication occurs without you present in the room.

There is a HUGE difference with someone in the room looking over your shoulder compared to when they are in the other room.

If the attending surgeon can’t decide what is appropriate based on the skills of their trainee, then we might as well have indefinite residencies and apprenticeships like the British system bc as someone else said what is the difference between July 1 and June 30?

 

[DoctwoB]

Honestly I question whether it matters or not from a liability standpoint. If we’re doing a prostate and the resident puts a hole in rectum or cuts the obturator nerve etc, if the patient sues it’s checkbook time whether the attending was in the room or not. Basically if something bad happens, the plaintiff can say your supervision was inadequate I.e you should have done it and not your resident, even if you were scrubbed while it happened.

 

[cpants]

Honestly I question whether it matters or not from a liability standpoint. If we’re doing a prostate and the resident puts a hole in rectum or cuts the obturator nerve etc, if the patient sues it’s checkbook time whether the attending was in the room or not. Basically if something bad happens, the plaintiff can say your supervision was inadequate I.e you should have done it and not your resident, even if you were scrubbed while it happened.

The trainee is essentially the attending legally speaking. When bad things happen, generally the op note does not read that the resident was operating or caused the complication.

 

[Wordead]

Being in the room during the case does not mean “not giving someone independence”. If you’re an attending physician supervising residents, you need to be in the room SUPERVISING your resident during surgery. That’s both common sense, and now the evolving standard of care in court.

Regardless of how one feels, the compliance officers, lawyers, and insurance companies have established how this is going to be. I just sat through our annual insurance company required risk management seminar where this was addressed. It was emphasized in an answer to this scenario that there IS NO DEFENSE as the physician/surgeon of record, if a surgery complication occurs without you present in the room.

Strongly disagree. The independence of having nobody in the room with you and having to make decisions to move the case along vs having a security blanket to look at constantly and say good idea? bad idea? is extremely valuable.

The legal aspect I have no disagreement with and yes that's probably where we are heading but I disagree that the attending being in the room not scrubbed vs not is the same.

 

[operaman]

Honestly I question whether it matters or not from a liability standpoint. If we’re doing a prostate and the resident puts a hole in rectum or cuts the obturator nerve etc, if the patient sues it’s checkbook time whether the attending was in the room or not. Basically if something bad happens, the plaintiff can say your supervision was inadequate I.e you should have done it and not your resident, even if you were scrubbed while it happened.

As much as I hate it, there’s a huge difference legally speaking. Not only does it basically serve as prima facie evidence of a deviation from the standard of care, but it opens to door to claims of gross negligence and massive punitive damages such as the above mentioned 8-figure settlements.

I’ve often wondered if a solution to this issue might be something like cutting surgical training to 3-4 years and have some level of certification at that point followed by a quasi mandatory 1-2 year fellowship wherein you are hired as a junior attending. Most non accredited surgical fellowships follow this model already, including the one I’m doing next year. Seems like a potential work around from a medicolegal standpoint.

 

[cpants]

As much as I hate it, there’s a huge difference legally speaking. Not only does it basically serve as prima facie evidence of a deviation from the standard of care, but it opens to door to claims of gross negligence and massive punitive damages such as the above mentioned 8-figure settlements.

I’ve often wondered if a solution to this issue might be something like cutting surgical training to 3-4 years and have some level of certification at that point followed by a quasi mandatory 1-2 year fellowship wherein you are hired as a junior attending. Most non accredited surgical fellowships follow this model already, including the one I’m doing next year. Seems like a potential work around from a medicolegal standpoint.

Another idea is take out some of the "functionality" in the EMR. There is no reason that it needs to be logging the surgeon in and out of the room down to the second or even at all. Who does this information help?

If you extend the training you just kick the can down the road further. In a few years, no one will want these "junior attendings" operating independently either. Then we can add a few more years to their training.

In my opinion, five years of 80 hour/week surgical residency should be plenty to get trainees to where they can operate independently and do the appropriate index cases for their field. Of course they may require or desire additional training for their career goals or to become competent at more rare or complex surgery. But to be graduating surgical residents that need a fellowship to feel confident doing a lap chole independently is just disgraceful. The answer isn't to lengthen the training, it's to improve the quality.

 

[droliver]

Just a followup, two 8 figure settlements at MGH and Lenox Hill (NYC) were reported this week relating to failure of resident supervision and simultaneous surgeries. Both involved issues of billing fraud and patient safety issues. As I mentioned upthread, the legal standard of care has quickly moved to an attending physician being in the room as required.

 

[Vandalia]

I won't disagree with that, however, don't think you are out of the woods. The fairly high-level and connected malpractice defense attorneys I deal with have said that the plaintiff's bar is developing suits going after residency training programs and faculty for negligently representing that residency graduates are qualified for independent practice without having verified that they are competent with reduced supervision. I would also point out that such suits are not considered medical malpractice suits and are therefore not covered by the limits on damages for such suits. (That are present in many states.)

So you had better figure out how to walk a very thin line.

 

[droliver]

the plaintiff's bar is developing suits going after residency training programs and faculty for negligently representing that residency graduates are qualified for independent practice without having verified that they are competent with reduced supervision

I think that’s not exactly what the angle is. What’s been proposed as a grounds for liability is graduating residents whom are grossly negligent (think the “Dr Death” podcast about the Dallas neurosurgeon who was graduated from UT-Memphis Neurosurgery program after there was clear evidence they though he was incompetent and pushed him out anyway).

That issue is a completely different thing then unsupervised residents in training performing surgery as well as the issues of billing fraud associated with it. As is now arguably the standard in those state (NY and MA), this liability and dealing with it is going to ripple through teaching hospitals nationwide from their house legal counsels and risk management offices.

 

[slowthai]

I think that’s not exactly what the angle is. What’s been proposed as a grounds for liability is graduating residents whom are grossly negligent (think the “Dr Death” podcast about the Dallas neurosurgeon who was graduated from UT-Memphis Neurosurgery program after there was clear evidence they though he was incompetent and pushed him out anyway).

That issue is a completely different thing then unsupervised residents in training performing surgery as well as the issues of billing fraud associated with it. As is now arguably the standard in those state (NY and MA), this liability and dealing with it is going to ripple through teaching hospitals nationwide from their house legal counsels and risk management offices.

Do you think this will have a significant impact on resident training within the next several years?

 

[cpants]

Just a followup, two 8 figure settlements at MGH and Lenox Hill (NYC) were reported this week relating to failure of resident supervision and simultaneous surgeries. Both involved issues of billing fraud and patient safety issues. As I mentioned upthread, the legal standard of care has quickly moved to an attending physician being in the room as required.

Your post is misleading with regard to the outcomes of these cases and the conclusions we should draw from them.

The MGH case was a settlement paid to a whistleblower who they wrongly fired. It really has nothing to do with standard of care or patient safety.

MGH settles for $13m with doctor who challenged double-booked surgeries - The Boston Globe

Dr. Dennis Burke was fired amid criticism of the hospital’s practice of double-booking surgeons during operations.

www.bostonglobe.com

The Lenox Hill case involved a lot more than running two rooms and was a settlement paid to the DOJ due to Medicare fraud, not a settlement as a result of a poor outcome for a patient, etc.

Northwell Health — which operates 23 hospitals and 700 outpatient facilities — admitted to overcompensating Samadi for OR referrals, billing Medicare for the simultaneous surgeries, and billing Medicare for procedures that did not need to happen in an OR.

Lenox Hill Hospital will shell out $12.3M for submitting fraudulent claims to Medicare

Lenox Hill Hospital and its parent company will cough up a $12.3 million settlement to the Department of Justice for submitting phony Medicare claims, authorities announced Friday. The hefty p…

nypost.com

It's important to note that neither one of these has established, as you claimed, a "legal standard of care" for the attending to be in the room at all times. While many of us may agree that it is inappropriate to run simultaneous rooms, that is not the same as mandating that the attending has to be in the room at all times. As far as I know, CMS guidance has not changed that the teaching physician must be present for the critical portions of the procedure.

 

[droliver]

The MGH case was absolutely about patient safety converns as that’s what led to the retaliation against Dr Burke in the first place. The settlement by MGH explicitly addressed that, and part of the settlement with Dr Burke codified this into MGH’s policies and procedures manuals.

It's important to note that neither one of these has established, as you claimed, a "legal standard of care" for the attending to be in the room at all time

You’d be wrong, and you’ve failed to appreciate what’s been established here. This is now an issue that is raised in every single adverse event at teaching hospitals and is a point of emphasis in current risk management courses. Winking and nodding at the “critical portion” standard is what got us into this in the first place.