Patient must be informed about substitute surgeon 

click to enlarge Under the California civil law,  the substitution of a surgeon without a patient’s consent may be considered not only medical negligence, but also medical battery. It also against the The American College of Surgeons' Code of Professional Conduct.
  • Under the California civil law, the substitution of a surgeon without a patient’s consent may be considered not only medical negligence, but also medical battery. It also against the The American College of Surgeons' Code of Professional Conduct.
This week’s question comes from Tara H. from the Mission, who asks:

Q: “I had a surgery recently to address a medical condition related to my reproductive organs. After the surgery, there were complications. When I went in for my postoperative care, the doctor who I thought had done the surgery never saw me. I was always seen by his fellow, who examined me and provided follow-up care. I became suspicious that my doctor had not actually done the surgery when I went in for one of my follow-up appointments and they said that “my surgeon, Dr. X” (who was the fellow) had to cancel my appointment because he was in an emergency surgery. I confronted my doctor about this and he sidestepped the issue saying that they worked as a team in the office and that they often followed up on other doctors’ patients. I was specific that I did not want anyone but the one surgeon to touch me: no students or other ‘team members.’ I requested my medical records and it appears that the fellow actually was my surgeon. I am furious. What are my rights?”

A: Tara, as incredible as this seems, I have proven, in two cases, that a doctor lied to a patient about being their surgeon. One involved a Holocaust survivor, whose family members had been the subject of medical experimentation and who was having elective surgery on her eyelids. She awoke from anesthesia and saw a different doctor holding a scalpel above her. She struggled on the table and was administered more anesthesia and rendered unconscious. She was later lied to and told she was, because of the anesthesia, imagining what she saw.

The second included an abdominal surgery where the patient and her husband were promised that one, very experienced senior surgeon, would perform her surgery. The woman had a form of OCD surrounding medical issues and had expressly conditioned her surgery on this doctor operating on her excluding any residents/students from performing any phase of the procedure.

The first case was proven by deposing the circulating nurse who was present during the surgery. The second case was proven by getting the operating room schedules for the surgical suite and showing that the physician who said he did the patient’s surgery was actually operating in a different operating theater. This breach of trust is both ethically unconscionable and illegal.

The American College of Surgeons Code of Professional Conduct, states: “The surgeon may delegate part of the operation to associates or residents under his or her personal direction, because modern surgery is often a team effort. If a resident is to perform the operation and is to provide the continuing care of a patient under the general supervision of the attending surgeon, the patient should have prior knowledge. However, the surgeon’s personal responsibility must not be delegated or evaded.” The Code of Conduct goes on to state: “It is unethical to mislead a patient as to the identity of the surgeon who performs the operation. This principle applies to the surgeon who performs the operation when the patient believes that another physician is operating (‘ghost surgery’) and to the surgeon who delegates a procedure to another surgeon without the knowledge and consent of the patient.”

The California Patients Bill of Rights also provides authority for the proposition that his is unlawful. Title 22 Section 72527 provides that patients have a right to participate in their care and to be fully informed and to receive all information that is material to an individual patient’s decision concerning whether to accept or refuse any proposed treatment or procedure.

Under the civil law (vs. criminal law) the substitution of a surgeon without a patient’s consent may be considered not only medical negligence but also medical battery (an offensive, unauthorized and unconsented to contact) and, potentially, fraud.

As one case stated: “Few decisions bespeak greater trust and confidence than the decision of a patient to proceed with surgery. Implicit in that decision is a willingness of the patient to put his or her life in the hands of a known and trusted medical doctor. ... The point is that a patient has the right to know who will operate and the consent form should reflect the patient’s decision. Where a competent patient consents to surgery by a specific surgeon of his choice, the patient has every right to expect that surgeon, not another, to operate.”

Doctors, like lawyers and other professionals, need to be held to the highest ethical standards and should be punished, severely, when they act in such a despicable manner. Get yourself a good trial lawyer to discover the true facts and obtain accountability.
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