In a recent investigative piece on Massachusetts General Hospital, the Boston Globe casts light on the practice, common in certain hospitals, of “double booking” surgeons. In the name of efficiency, a particularly in-demand surgeon will participate in two procedures scheduled at the same time by moving back and forth between the two operating rooms—a practice that, unsurprisingly, occasionally renders him or her difficult to locate when a need arises in one or the other of the rooms. The Globe piece focuses on former MGH surgeon Dr. Dennis Burke, whose crusade against the practice revealed at least 44 problems allegedly attributable to it, including the sad case of 41-year-old dad Tony Meng, who woke up from a double-booked spinal surgery permanently paralyzed. (Whether the double-booking was directly responsible for the disastrous outcome has not been fully determined.)
While it is difficult to read the Globe piece without feeling somewhat nauseous about the concept of double-booking itself, the debate surrounding it raises a broader problem with the current state of medical practice: the subordination of patient control over their bodies to the preferences of their physicians in cases where the patients should be making active decisions. Tony Meng—along with most of the other MGH patients discussed—had no idea his surgery was being double-booked until after the fact. MGH, like many hospitals that deploy the practice, has no policy requiring that patients be informed of this possibility before submitting to the knife. These patients cannot, therefore, be said to have given legitimately informed consent to their surgeries.
MGH officials defended concurrent surgeries to the Globe with reference to long-term success rates: In the two years after the Meng tragedy they found “no significant difference in complication rates between overlapping and non-overlapping cases” and described the practice “as an extension of the teaching hospital’s team approach, pairing senior doctors with residents.”
While this defense may support the proposition that double-booking does not cause much harm on average, it ignores the question of whether an individual patient should be able to choose what degree of “significance” in complication rates he is willing to tolerate before allowing a procedure to be performed on him concurrently. The hospital’s attitude appears to privilege its long-term pedagogical goals over the right of a patient to be given a significant piece of information about the surgery he is contemplating.
The environment in which local medical culture trumps patient autonomy has been fostered by the legal framework governing informed consent. Physicians rightfully complain about a litigation culture, driven by plaintiffs’ attorneys, that exposes them to seemingly bottomless liability in nearly all cases with bad outcomes (many of which are unavoidable, despite the physician’s best efforts). While more than half of U.S. states cap malpractice damages for pain and suffering, few restrict claims for economic damages such as long-term care. Despite all of this exposure to liability, however, the law does not do nearly enough to protect patients’ ability to make informed decisions about the procedures they do elect.
Under current tort law, a patient seeking to recover against a physician for performing a procedure without providing enough information must prove three things. First, he must show that the physician failed to disclose some risk in the recommended treatment, or the existence of any alternative method of treatment. Second, he must show that he would have forgone the recommended treatment had he known of the undisclosed information. Finally, he must show that as a result of the recommended treatment he suffered an injury that would not have occurred had he opted for one of the undisclosed methods of treatment.
A patient like Tony Meng can quite easily prove the third element: The outcome of any legal action he takes against MGH will likely turn on the first or second. MGH might well argue that the risk from the concurrent surgery was not significant enough to have been obligatory to disclose under the first element, or that, under the second, Meng would not have deemed the double-booking problematic enough to have changed his decision about the surgery. In general, however, a patient as severely damaged as Meng will most likely be able to recover damages.
Yet extreme cases like Meng’s tend to obscure a pervasive problem driven by the dual legal and medical inattention to patient autonomy. Most patients who undergo procedures in the absence of adequate information cannot recover at all because they are not considered to have been harmed. Imagine the case of a patient who is experiencing chronic but bearable knee pain. The doctor recommends surgery without telling her that there is a significant chance the pain will abate over time, and an even greater chance that the pain will, at a minimum, never worsen. The patient undergoes the surgery on the mistaken belief that it is necessary to prevent further degeneration and endures the pain, the risks of anesthesia and infection, the disruption to her life, physical scarring, and the long-term diminished capacity attendant to many major knee surgeries. So long as the surgery did not “go wrong” in some way beyond these expected effects, such a patient can never recover, even if she can show that the physician failed in his duty to provide adequate information about alternatives and that she would have made a different decision with that information. The law does not recognize her as having been harmed.
The law’s narrow concept of harm in informed consent cases is particularly troubling in light of a growing body of literature suggesting that there are long-term psychological and physical effects from interference with patient autonomy. As the late psychologist Oakley Ray put it, “the causes, developments and outcomes of an illness are determined by the interaction of psychological, social, and cultural factors with biochemistry and physiology.” In other words, the context in which illness takes place can affect its eventual outcome. A burgeoning field called “narrative medicine” has shown that patients have different ways of coping with their illnesses and treatment that, because of the operation of the body’s stress mechanisms, can result in long-term physiological problems if ignored. For example, a patient who prioritizes bodily autonomy may suffer both psychological and physiological effects such as increased blood pressure from receiving invasive treatment beyond her control.
In the absence of legal change, however, patients—particularly patients who place a high value on bodily autonomy and control—must play a more active role in their own care. The stakes are not merely symbolic. At one extreme lies the rare necessity of avoiding a devastating outcome like Meng’s. More commonly, a patient will benefit from insisting upon all of the information necessary to make certain that an invasive course of treatment is the right choice for him personally. There are a couple of habits of mind patients can adopt to this end.
First, patients should not allow doctors to prevent them from expressing themselves, either at the point of articulating their symptoms or while asking questions about treatment. A 1984 study published in the Annals of Internal Medicine found that the average amount of time between the opening of an interview with a patient and the doctor’s first interruption was 18 seconds; these results were largely duplicated in a 2001 study. Patients must recognize that they, too, have important information relevant to their treatment and should generally not accept treatment unless they have communicated everything to their physician.
Second, patients should realize that quite frequently there is no single “correct” medical answer and that—to the extent their coverage and the severity of their condition allow it—they have an opportunity to seek out second opinions and compare the proposed treatment plans of multiple doctors. In one 1991 study of family practition-ers conducted by the University of Washington, for example, 137 physician replies resulted in a total of 82 different strategies for treating a urinary tract infection. Further, a 1994 Harvard study found that one-quarter of heart bypasses, angioplasties, and catheterizations performed on elderly heart attack victims were unnecessary. And of course, some hospitals allow concurrent surgeries, others allow surgeries to overlap by only a limited amount of time, and others ban them. Rather than accepting a physician’s word as monolithic truth, a patient must consider it to be the word of a highly trained specialist who is providing a service to the patient. In the absence of legal or medical norms of facilitating patient choice, the patient may find himself better informed about his treatment when he begins to think of himself as a consumer rather than an object.
Erin Sheley is an assistant professor on the faculty of law at the University of Calgary.
