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Many years ago, I practiced in the Midwest. That town had a large community of immigrant physicians (from India). The community loved them. These physicians did well and were, by all measures, wildly successful. Once a year, these physicians “gave back.” They rented a large venue and catered a “thank you party.” The food was always good; the atmosphere festive. It was a feel-good moment.
One year they changed caterers. That year they chose a caterer from Indianapolis. The lamb curry was particularly delicious. I had several portions.
The next day, I was in the operating room with my partner. I was preparing to clip an intracranial aneurysm. The dissection had been done. All that was left to do was place the clip. It would have only taken a few minutes.
My stomach had been gurgling the entire case. The clock was ticking. Could I place the clip on the aneurysm before I needed to head to the bathroom?
No.
My partner “babysat” the operative field while I rushed to the doctor’s lounge bathroom.
To my surprise, there was a line to the toilets.
Apparently, I was not the only person who enjoyed the lamb curry the day before.
I made it back to the OR, scrubbed in, and placed the clip. The rest of the procedure was uneventful.
Fortunately, a highly qualified surgeon was in the OR with me, allowing me to take the bio-break. He had not touched the lamb curry the previous day.
Reflecting on that incident, I wondered what happens if a surgeon or the anesthesiologist gets sick during a case, and cannot continue. What if one of them dies? What then?
With the amount of surgery that takes place across the country every day, the number may be low. It cannot be zero. Recently, the media reported on a pilot who collapsed at the controls. A passenger with “no idea how to fly” landed the plane.
Commercial pilots have to pass a physical exam. Surgeons and anesthesiologists do not.
In 2017, the AAMC reported that the percentage of anesthesiologists age 55 or older was 52%. For thoracic surgery the percentage age 55 or older was 58%. For other surgical subspecialties, the percent age 55 or older is substantive, often over 40%.
This post is not advocating for yearly physical exams. Nor is it advocating for mandatory retirement ages.
Still, I believe every surgeon and anesthesiologist should have a plan – addressing the unlikely, but foreseeable event they will not be able to complete a case.
If the case has not yet started, and it’s elective, then the matter is simple. One just explains to the patient why the case will be delayed or canceled.
If the case is started, is there another person nearby or available to finish or safely close? If one practices in a large institution, the options are greater. If one practices solo, in a tiny surgicenter, for example, the options are limited.
Thinking about this before it rears its head will allow a solution to be accessed while the clock ticks and seconds count.
While the challenge may be uncommon, it is foreseeable. And the word “foreseeable” is used by lawyers in claims for negligence. It is generally not negligent to become sick during a case. But a lawyer can and will argue it was foreseeable that a surgeon or anesthesiologist could become sick or die during a case, and the absence of a prior contingency plan delayed necessary action causing death or disability.
The pilot referenced earlier was lucky a passenger was able to land the plane. There, the passenger saved his own life (and the pilot’s).
In the operating room, most of the team will survive. To avoid the inevitable follow-on lawsuit, think about the contingency before it’s a crisis. Have a plan.
What do you think?
"Can Medical Justice solve my problem?" Click here to review recent consultations...
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
In a small general hospital one surgeon theoretically could cover some of what another surgeon or sub-specialty surgeon could do. But not all of what they could or would do.
There is also a differentiation between an open case and a closed or scope case.
In a scope case, cysto, endoscopy, bronchoscopy , pull the scope out the scope and the case is done. More complicated if the procedure is a TURP with active bleeding. Ditto for a endoscopy with a polyp being removed that is not fully cauterized yet. Familiarity with different equipment that different surgeons favor is an issue arguing for standardization of equipment for this and other reasons.
But open surgery is another issue. General surgeons don’t have a lot of ENT training.
The situation is worse if it is anesthesia that goes down. How many surgeons could reverse a muscle relaxant? How many surgeons could operate an anesthesia machine ventilator or adjust anesthetic levels with a vaporizer for inhaled anesthestics or an infusion pump for propofol?
In most smaller facilities with no anesthetic backup, there is no way to provide for backup anesthesia in the very rare event that anesthesia personnel get sick or die.
This is an interesting question. Do you perform a disclosure that is a part of the consent that informed the patient that something might happen to you and the surgery may I may not be completed depending on availability of the qualified staff?
I had something happened to me about 10 years ago. In the middle of 6 hour surgery at surgery center I needed to go to the bathroom. It was bad. I stepped outside. The patient was closed as I was doing done with breast surgery and was getting ready to start tummy tuck. From the time I left the room to the time I came in scrubbed in, based on the operating room record, I was away for 17 or 18 minutes. One of the nurses who wanted to get away home faster, filed a complaint with the medical board. She accused me of patient abandonment. It took about $10,000 in legal fees and a threat to sue the medical board because of unreasonable actions to stop the crazy investigation. At some point, 20 person member panel of the medical board asked me what was my contingency plan in case if I drop dead. when I told them that I did not have the plan, I was accused of lack of preparedness.
Considering that 90% of the board members were physicians and about 10% of them or surgeons, I asked what was their contingency plan? None of them could give me a coherent answer.
I think I need to include the statement of possibility of unpredictability of my health into a surgical consent as a part of standard consent.
Good news: not a common event. As a matter of prep at our Office Based Surgery center (New York) we have policies in place. More importantly, we talk about this with the staff in the OR frequently.
What if the surgeon goes down? Or the anesthesiologist?
#1 don’t abandon the patient. If anesthesia goes down call for help but surgeon takes over as anesthesia. It may not be pretty. But a surgeon should be able to safely if not smoothly wake up patient if needed. A surgeon who can’t manage an airway has no place in the OR
If surgeon goes down call partner or colleague. Worst case dress the site, wake up the patient and transfer to hospital.
Counter-example: Joan Rivers died because the anesthesiologist didn’t have/use succinylcholine and the ENT attending didn’t trach her.
Sad no one is thrown out of residency programs.
First part of answer:
About 25 or 30 years ago, I was doing a lot of moonlighting. There weren’t many of us doing neurointerventional surgery, and after Charlie Wilson talked about “the future of neurosurgery” circa 1988, everyone wanted to be able to provide it. I had lined up 9 cases to do over a three day period at my favorite spot: Lafayette, La. I did 3 cases the first day and 3 the second day.
My friends (referring docs) and I had dinner the second evening, so I went to bed on a relatively full belly. And I slept particularly poorly. Around 4 or 5 AM, I started to get very sleepy. At 6 I could hardly pull myself out of bed, but I figured that a shower and a shave would wake me up and I’d be good to go. When I was drying myself off after the shower, I saw a large rash along 2 or 3 dermatomes on my right chest. There’s no differential diagnosis–it can only be one thing.
First case was to be a meningioma embolization followed by a routine angiogram. Followed by balloon-embolizing a basilar apex aneurysm. I decided to play it by ear.
Meningioma turned out not to have a favorable blood supply, so it was no more than an angiogram. I told the techs and nurses that I was feeling very sleepy and was going to hole up in one of the offices and take a nap between cases. No problem, doc. We’ll come get you.
I felt marginally better after the nap and decided that an angiogram was something I did at my brainstem level, so no problem. But by the time I was done, I was fatigued like never before. I was not going to treat an enraptured aneurysm that day.
But what to do? If that was ever discussed in medical school, I missed that class. Reading the above–article and letters–I guess everyone else either missed it or it hadn’t made the syllabus there yet either. Only one thing to do: talk with the patient.
Turns out the aneurysm was diagnosed on a routine follow-up CT scan for restaging a breast ca in remission. As I told her what was going on, she looked at me strangely. When I stopped and asked if she had any questions she became very agitated and told me that she was sure I had found something on her scans and wasn’t telling her. I went over the whole thing again, and got the same response. Finally, her husband intervened and said something like “honey, the doctor’s telling you that he’s sick.”
I offered to refer her to someone right then or to return in a couple weeks and do it myself. She chose the latter and I returned and treated her successfully at that time.
But it was a strange problem to solve since it hadn’t come up before and I hadn’t considered it.
***************************************
Part 2 is a reply to Dr. Volshteyn’s story:
One university with which I was affiliated had a neurosurgeon whose practice was less than pristine. At one point, he decided that he was going to clip all aneurysms, regardless of suitability for endovascular treatment. I noticed two things: I was not getting any referrals from him for treatment, but I was still getting a stream of patients for post-op studies.
I started asking the patients why they had chosen to have open surgery vs. endovascular treatment. They were split ~ 50/50: half said that they had never heard of an option, half said that it had been brought up, but that they hadn’t been good candidates for it. Needless to say, I had been consulted on them precisely…never.
That’s when it got interesting. Apparently a few patients asked the surgeon about the questions which led to the surgeon and his PA attacking me for “bringing patients into” what was obviously less a turf war and more a battle of egos. Surgeon also brought this up to the chief of staff and I was invited to a meeting. I was again attacked for “bringing patients into” the question of how their aneurysms were going to be treated. I pointed out the facts of the cases–24 in a row–many of whom had had complications from the open surgery. All but perhaps 2 were excellent endovascular candidates. Still “it was wrong for you to being patients into this.”
I pointed out a few things: 1) What the surgeon was doing was prima facie unethical and illegal–he was doing open neurosurgery without obtaining informed consent. In fact, he was getting intentionally misinformed consent. 2) He had had multiple complications as direct results of his actions and inactions. 3). How would you–chief and assistant chiefs of staff have gotten the information? “I don’t know, but it wouldn’t have been the way you [Joe] did.” To which I replied that now I knew what they wouldn’t have done, but was no farther along in patient care knowing what I should have done. 4). Part of the medical history I was taking was what led patients to have the procedures they had. I guess I was only supposed to get some parts of the history and not others.
I finally got up and walked out of the “meeting,” even as they were telling me that it wasn’t over. I told them that it was fine with me for them to carry on, but it would be without my presence. The bridge having already been burned, there was no point in trying to put up pontoons to cross a dead river.