Ghost Surgery: A Frank Look at the Issue and How to Address It

CONTINUING EDUCATION

Ghost Surgery: A Frank Look at the Issue and How to Address It 2.4

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DEBRA DUNN, MSN, MBA, RN, CNOR Continuing Education Contact Hours

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indicates that continuing education (CE) contact hours are available for this activity. Earn the CE contact hours by reading this article, reviewing the purpose/goal and objectives, and completing the online Examination and Learner Evaluation at http://www.aorn.org/CE. A score of 70% correct on the examination is required for credit. Participants receive feedback on incorrect answers. Each applicant who successfully completes this program can immediately print a certificate of completion.

This program meets criteria for CNOR and CRNFA recertification, as well as other CE requirements.

Event: #15548 Session: #0001 Fee: Members $19.20, Nonmembers $38.40

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The contact hours for this article expire December 31, 2018. Pricing is subject to change.

Purpose/Goal To provide the learner with knowledge specific to understanding ghost surgery and its consequences.

Objectives 1. Describe ghost surgery. 2. Explain the ethical and legal considerations related to ghost surgery. 3. Discuss informed consent. 4. Describe multidisciplinary activities that may be taken to prevent ghost surgery.

AORN is provider-approved by the California Board of Registered Nursing, Provider Number CEP 13019. Check with your state board of nursing for acceptance of this activity for relicensure.

Debra Dunn, MSN, MBA, RN, CNOR, has no declared affiliation that could be perceived as posing a potential conflict of interest in the publication of this article. The behavioral objectives for this program were created by Helen Starbuck Pashley, MA, BSN, CNOR, clinical editor, with consultation from Susan Bakewell, MS, RN-BC, director, Perioperative Education. Ms Starbuck Pashley and Ms Bakewell have no declared affiliations that could be perceived as posing potential conflicts of interest in the publication of this article.

Sponsorship or Commercial Support No sponsorship or commercial support was received for this article.

Disclaimer Accreditation AORN is accredited as a provider of continuing nursing education by the American Nurses Credentialing Center’s Commission on Accreditation.

AORN recognizes these activities as CE for RNs. This recognition does not imply that AORN or the American Nurses Credentialing Center approves or endorses products mentioned in the activity. http://dx.doi.org/10.1016/j.aorn.2015.10.003 ª AORN, Inc, 2015

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Ghost Surgery: A Frank Look at the Issue and How to Address It 2.4

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DEBRA DUNN, MSN, MBA, RN, CNOR

ABSTRACT

Ghost surgery occurs when a physician assistant, a surgical assistant, an RN first assistant, a resident, or another surgeon assists on or performs an operative or other invasive procedure without the patient’s knowledge, regardless of whether the surgeon who obtained the consent was scrubbed in or not. This practice denies patients important information, eliminates their ability to provide informed consent, and represents an ethical issue that nurses must deal with when working with peers and patients. The American Nurses Association developed the Code of Ethics for Nurses to help guide nursing practice, and the provisions within the code embody the ethical issues that should guide nurses’ practice in advocating for patients. AORN J 102 (December 2015) 603-613. ª AORN, Inc, 2015. http://dx.doi.org/10.1016/j.aorn .2015.10.003 Key words: ghost surgery, attending surgeon, assistant surgeon, surgical consent, ethics.

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host surgery, simply defined, is when someone other than the attending surgeon (who obtained consent) performs an operative or other invasive procedure without the patient’s knowledge. This may occur with or without the attending surgeon’s presence during the procedure. This practice occurs most often in teaching hospitals to varying degrees; however, it can occur in any OR, procedure room, or ambulatory surgery center. The practice can include other surgeons, RN first assistants, surgical assistants, and physician assistantsdnot just residents. A literature search demonstrates that little has been published about this practice. Aside from a few web sites used for this article, eight articles written before 2000,1-8 one in 2001,9 two in 2002,10,11 one in 2007,12 and two in 200913,14 discuss ghost surgery. Most of the newer articles reference the older articles, and none were written by a nurse or addressed patient advocacy from a nursing point of view. Because this practice is suspected to occur in a large number of institutions, it is time for a discussion about what can be done to curb the practice in an effort to advocate for

patients’ rights and to protect health care facilities from unnecessary litigation. To clarify the concept, consider the following example. A urology surgeon who participated in a group practice obtained consent from a patient for a scheduled surgery. His partners, however, performed the procedure without the surgeon, without the patient’s knowledge, and without the consent being updated with the correct surgeons’ names. The patient had to be readmitted as a result of postoperative complications and learned that the surgeon the patient believed would perform the procedure was not the surgeon of record, even though his name was listed as the surgeon on the signed consent form. The patient filed suit (Perna v. Pirozzi, 1983), and when the case went to court, the judge labeled the substitution of surgeons as ghost surgery and held that it constituted battery.1 The court summarized the law as follows: If the patient suffers no injuries except those which foreseeably flow from the operation, then she is entitled to at least nominal damages and may in an appropriate case be entitled to

http://dx.doi.org/10.1016/j.aorn.2015.10.003 ª AORN, Inc, 2015

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damages for mental anguish resulting from the belated knowledge that the operation was performed by a doctor to whom she had not given consent.1(p293) Originally, the term ghost surgery was used when a surgeon who was not qualified to perform the procedure but who had met with the patient and obtained consent would allow a qualified surgeon to perform the procedure on his or her behalf without the patient’s knowledge. The unqualified surgeon would then provide postoperative documentation and bill for the procedure.2 Today, the term has expanded to include any instance of substituting one physician for another without the patient’s knowledge.3 This practice is considered unethical and is condemned by the American Medical Association (AMA) and the American College of Surgeons (ACS).2,3 Legal and ethical issues regarding physicians and nurses are defined by the AMA, the ACS, AORN, and the American Nurses Association (ANA). Physicians have a professional and legal obligation to obtain informed consent for all operative or other invasive procedures, which includes who will be performing the procedure. However, there are gray areas in defining certain terms within these legal and ethical guidelines, and there are additional challenges inherent in teaching hospitals and in educating residents who are involved in the patient’s intraoperative care.

ETHICAL AND LEGAL CONCEPTS In many instances, surgical teams perform procedures on patients who are either anesthetized and unconscious or sedated. During the operative or other invasive procedure, the patient usually does not know what is happening to his or her body or who is in the OR. It is therefore possible for the attending surgeon to substitute others to perform or assist with the surgery without the patient’s knowledge or permission. Legally speaking, the patient has the right to determine what will be done to his or her body, as decided in 1914 by Judge Benjamin Cardozo’s ruling in Schloendorff v. New York Hospital.15 This ruling resulted in the legal judgment that surgery without consent constitutes assault, with the operating surgeon considered to be the liable party.3 Relevant legal concepts applicable with regard to ghost surgery include the intentional tort law of battery, negligence, informed consent, individual rights to bodily integrity, rights to material information, and the duty to disclose.10 Ghost surgery can occur in many ways. The following are some hypothetical examples that demonstrate the ethical dilemmas that can arise in these situations. 604 j AORN Journal

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A patient in the preoperative holding area seeks reassurance from the RN circulator that the surgeon will be in the OR for the procedure. The circulating nurse knows that, for the most part, it is the resident who will be performing the surgery, not the attending surgeon. He also knows that the attending surgeon is scheduled to perform another procedure in another room at the same time.
The RN circulator wants to accurately document the times that various perioperative team members are in the room. She notes when anyone leaves or returns to the OR suite from a break and who replaced them. In the electronic documentation system, however, she cannot document when the attending surgeon is present or absent. Because the procedure was scheduled under the surgeon’s name, the computerized system assumes the surgeon is in the room for the entire procedure by default. This leaves the circulating nurse no place to document the attending surgeon’s presence or absence except as free text. Ghost surgery becomes more difficult to identify and regulate because of the vagueness of the term supervisor or teaching physician. The ACS states that “based on the level of competence of the resident, the teaching physician may not be in the operating room for some or all of the tasks the resident performs.”12(p38) This statement, however, does not stand in isolation, because there is a clause regarding practice rules and billing and payment criteria, which states that “payment will only be made to the teaching physician if he or she is present in the operating room for the portion(s) of the procedure that he or she determines are critical or key.”12(p38) However, the ACS does not define what is meant by the critical or key parts of surgery. The following are some of the issues that arise because of this ambiguity:
Who determines the critical or key component of a procedure (eg, hospital administrator, attending surgeon, regulatory agencies)?
If a standardized definition of critical or key components existed by procedure, what happens if it does not fit all surgeons’ notions about which parts of a procedure are critical or key?
How is the nurse to determine whether the surgeon met the requirements for being in the OR during the critical or key times?
What is the circulating nurse supposed to do if the surgeon was in the OR during parts of the procedure but does not scrub in?
What if the attending surgeon greets the patient in the OR before induction and when the patient is waking up postoperatively, but he is not in the OR during the procedure?

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Ethical Guides for Nursing The ANA developed the Code of Ethics for Nurses16 to help nurses when working with other health care professionals and with patients. Although there are nine provisions in the code, the following six are specifically relevant to handling informed consent issues regarding attending surgeons and their assistants or replacements during surgical procedures.
Provision 1: Nurses should demonstrate respect for human dignity. This means that people have inherent worth, dignity, and human rights, and they have the ethical and legal right to determine what will be done to them and their bodies. Health care providers must share accurate, complete, and understandable information with patients so they can make informed decisions, which include the right to refuse or terminate treatment. Unwarranted or unwanted treatment directly interferes with a person’s right to self-determination or autonomy. The nurse’s role is to protect and support patients in attaining selfdetermination; therefore, the nurse is obligated to question practices that are less than ethical and advocate for the patient.
Provision 2: Nurses include patients when planning their care and ensure patients agree with these plans. Patient questions require answers, and the nurse provides this in collaboration with other health care providers.
Provision 3: Nurses are patient advocates with a primary focus on the health, well-being, and safety of the patient. This means that nurses must bring forward difficult issues for discussion. Nurses also must take appropriate actions when any health care team member is providing incompetent, unethical, illegal, or impaired care by bringing the issue to the attention of the nurse manager or director.
Provision 4: Nurses are expected to behave in accordance with the code of ethical conduct grounded in the moral principles of fidelity and respect for the dignity, worth, and self-determination of patients, irrespective of the health care organization’s policies or a provider’s directives.
Provision 5: As patient advocates, nurses ensure patients are not deceived and information is not withheld from them. Nurses must express their moral perspectives even when they differ from others’ perspectives. Nurses are justified in refusing to participate in situations that conflict with their moral beliefs as long as the conscientious objections are made known early enough so that other arrangements can be made for patient care.
Provision 6: Nurses are required to promote environments that support the virtues of promoting the human dignity, well-being, respect, health, and independence of patients and to identify issues that need to be addressed. In so doing,

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nurses will meet their personal moral obligations to do what is right for their patients.

Ethical Guides for the Practice of Medicine The legal system places limits on what physicians can and cannot do. When laws do not exist to guide behavior, ethical reasoning is used.17 In the Code of Medical Ethics, the AMA states that the surgeon is obligated to perform the operation himself, and he may use the services of assisting residents . . . If a resident or other physician is to perform the operation under the guidance of the surgeon, it is necessary to make a full disclosure of this fact to the patient . . .2(p417) The phrase under the guidance of the surgeon infers that the surgeon is scrubbed in at the surgical field while tutoring the resident. The AMA’s Council on Ethical and Judicial Affairs declares it to be deceitful for a surgeon to allow a resident (or anyone else) to operate on the patient without his or her consent and recommends that surgeons introduce the resident or other party to the patient and provide information on his or her training status.7,13 Patients have the right to choose their physician and can agree to or refuse the resident’s (or other party’s) participation (Table 1).18 The physician’s signature on the consent form attests to the fact that he or she is performing the surgery and may not delegate this role to another person without explicit consent from the patient. According to Kocher, it is not unethical for the operating surgeon to delegate the performance of certain aspects of the operation to the assistant provided this is done under the surgeon’s participatory supervision, i.e., the surgeon must scrub.10(p149) If the resident is to perform surgery without participatory supervision, the surgeon must provide full disclosure of this fact to the patient, and this information should appear in the consent. In this situation, the resident becomes the operating physician.12,16 The ACS states that informed consent is not just a legal requirementdit is a standard of ethical surgical practice.7 The fellows of ACS note that physicians should
be effective advocates in meeting their patients’ needs, which includes being sensitive and respectful of patients while understanding their vulnerability;
be honest, maintain patient confidentiality, and uphold the value of altruistic care;
set and maintain practice standards and monitor self and others to provide safe care; and

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Table 1. Surgeon Substitution AMA Statement

Explication of the AMA Statement

“A surgeon who allows a substitute to operate on his or her patient without the patient’s knowledge and consent is deceitful. The patient is entitled to choose his or her own physician and should be permitted to acquiesce to or refuse the substitution.”1

Surgeons have an obligation to perform the surgery by
practicing within the scope of the surgical consent,
practicing according to the terms of that consent (ie, contract),
providing complete disclosure of facts relevant to the procedure, and
using their best skills.

“. . . it is the operating surgeon to whom the patient grants consent to perform the operation. The patient is entitled to the services of the particular surgeon with whom he or she contracts.”1

After accepting the patient, the operating surgeon
must use his or her personal talents to perform the surgery and
cannot delegate the responsibility to perform the surgery to another without the patient’s consent.

“Under the normal and customary arrangement with patients, and with reference to the usual form of consent to operation, the operating surgeon is obligated to perform the operation but may be assisted by residents or other surgeons. With the consent of the patient, it is not unethical for the operating surgeon to delegate the performance of certain aspects of the operation to the assistant provided this is done under the surgeon’s participatory supervision.”1

For the operative surgeon to delegate his or her responsibilities, the surgeon must
supervise the delegate,
be scrubbed in,
fully disclose whether a resident or other physician is to perform the operation with or without supervision, and
document the disclosure in the consent.

AMA ¼ American Medical Association. 1. American Medical Association: Opinion 8.16 - Substitution of Surgeon without Patient’s Knowledge or Consent. http://www.ama-assn.org/ama/ pub/physician-resources/medical-ethics/code-medical-ethics/opinion816.page. Updated June 1994. Accessed August 31, 2015.


participate in educational programs that address professionalism by adhering to ethical principles.7 In the Statement on Principles, the ACS states that the patient should be informed when the attending surgeon will not be an active participant at the surgical field.2,7 Kocher10 notes that the patient’s surgeon should be the person with whom the patient discusses the planned procedure and who participates in signing of the consent form. The physician is then “obligated to utilize his personal talents”1(p295) during the surgery as required by the consent. These duties and responsibilities cannot ethically be delegated to another.1

INFORMED CONSENT Informed consent is a process that involves shared decision making. Along with explaining the surgery, its risks and benefits, and alternative treatments, the physician has an obligation to disclose information in layman’s terms so that a reasonable person can make an informed decision.4,10,14 Consent can be expressed or implied. Expressed consent means the affirmation is given verbally by the patient or in written form, such as with a signature. Implied consent means an inference is made in the given circumstance. For example, when a patient extends his or her arm to the nurse to insert 606 j AORN Journal

an IV, this act represents implied consent. The extending of the arm demonstrates a willingness on the patient’s part for the nurse to insert the IV; otherwise, he or she would not let the IV insertion begin.1 The principle of autonomy requires health care providers to include patients in the decision-making process, respect their rights, and acknowledge their control of their destiny.14 This means that patients have the right to
choose or decline an examination or treatment;
receive all information regarding the proposed treatment, risks and benefits of the treatment, and alternatives to that treatment;
be fully informed about who will be performing the surgery; and
refuse to allow a resident to participate in his or her care.4,10 A patient has the right to refuse care even when we [health care providers] think that he is dead wrong, even when the whole medical profession thinks that he is wrong. Patients have the right to control their lives and to make decisions about their own bodies. And that gives them the right to make foolish decisions as well because otherwise the right means nothing.4(p409)

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Health care providers should always honor a patient’s right to self-determination and free will if the patient is of sound mind.1,4 Given the abundance of medical information, patients will never have as complete a picture as an experienced surgeon.9 In addition, some patients do not want to hear all of the information about their procedure, whereas others are unable to cope with too much information. Surgeons make judgments about their patients and then determine how much information is appropriate to share based on their responses to the information. If the patient seems receptive to more information, the physician is encouraged to share it. If the patient appears to be disengaging or uninterested, then the physician may share less.13 Some patients, for example, may trust the surgeon to do what needs to be done and do not want to know anything. In these situations, the surgeon may present simple information on which the patient can base a decision rather than engaging in a detailed discussion. Some patients may experience increased anxiety when too much information is provided. The physician’s goal is to share pertinent information without overwhelming the patient or increasing his or her anxiety or affecting his or her ability to provide consent. In those situations in which the appropriate amount and type of information is not able to be shared with the patient, the physician must share it with the next of kin or power of attorney, especially when obtaining consent. Using the basic universal mode of ethical analysis, nondisclosure to a patient is considered ethical if, in the surgeon’s opinion, the patient will experience increased anxiety with disclosure, which can cause harm.13,14 The principle of autonomy instructs us to respect the right of patients to take part in their own health care decision-making, and, in a sense, to control their own destiny. This is ‘respect for persons’.. The principles of truth-telling and nonmaleficence (“do no harm”) also come into play.14(p643) The reasons for nondisclosure must be extreme enough to justify that nondisclosure is in the patient’s best interest and should be clearly documented and witnessed. This is known as therapeutic privilege.14 The surgeon must balance the principles of truth-telling and nonmaleficence against withholding information. If a patient refuses to discuss the planned surgery and its possible outcomes, then the surgeon may decide to cancel or postpone the procedure until the issue can be further explored. It may also be helpful to consult with an ethics committee to determine whether proceeding with surgery is advisable.

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TEACHING HOSPITALS AND RESIDENTS Residents must have the opportunity to learn how to perform surgery.2 The medical profession acknowledges its responsibility to prepare medical students, residents, and fellows to become skillful, experienced, confident, and qualified to perform surgery independently to meet patient needs in the future,8,11 and there is no dispute that this practice is ethical and lawful.2 The clinical segment of surgical training needs to happen in the OR for residents to build on their didactic learning; however, this training must maintain the provision of safe and effective patient care.11 There is evidence that supports the work of residents in the OR and demonstrates positive patient outcomes. In fact, “The outcome of complex operations performed in university [teaching] hospitals is generally better than the results of identical operations performed in private hospitals,” and these outcomes are identical whether surgery was performed by the attending surgeon or by residents.3(p20) Levin14 found that complications related to ophthalmologic surgery performed by residents were not greater than when the attending surgeon performed the surgery alone. Another study19 concluded that residents working under the supervision of surgeons during colon resections provided safe surgical care for their patients. Patients require information to understand that surgical residents are graduate physicians who are licensed to practice independently but have chosen to specialize their practice and become surgeons. This requires extensive training. In the final year of a surgical residency, a chief resident is considered to be the surgeon’s associate, not his assistant.5 In some cases, the resident may even have the same knowledge as the surgeon, although he has not yet developed the wisdom that comes with time and increasing responsibility.3 When residents assist on or perform surgical procedures, the term ghost surgery applies if the patient
is unaware that the resident scrubs in to assist the surgeon;
is unaware that the resident scrubs in and is acting as the primary surgeon while the attending surgeon supervises;
is unaware that the attending surgeon is not present during the procedure, has not met the resident, and the resident is the sole operating surgeon;
has met the resident and knows the resident is acting in the primary role as lead surgeon but does not know the authorized surgeon is not present to provide supervision for the resident; or
has met the resident but does not know the resident is acting as the sole operating surgeon.

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Whenever the patient is not informed as to the identity of the resident and what his or her role will be during a procedure, this is a form of ghost surgerydeven if the authorized surgeon is present to provide supervision and assistance for the resident. A surgeon who obtains consent from the patient but only serves in the role as an assistant for the resident is not considered the operating surgeon.1,2,10 The only time the term ghost surgery does not apply is when the resident is introduced to the patient and his or her role in the upcoming procedure is explained. When a resident or another party performs the bulk of the surgery without the patient’s knowledge, this is considered a break in the fiduciary physician-patient relationship and is considered deceit. A fiduciary relationship is legally defined as “the relationship wherein one person has an obligation to act for another’s benefit.”20 A breach of this relationship is cause for legal action by the patient against the unauthorized party for battery and/or assault and against the authorized surgeon for malpractice or fraud (ie, billing and payment for services not rendered by that specific physician), as well as for the emotional distress inflicted by the substitution of physicians. It also is grounds for disciplinary action.1,2,8,10 Assault is the unlawful attempt or intention to commit a violent act on a person, and in this instance, surgery without consent is considered a type of violent act.1 Battery is the willful and unauthorized interference with a person’s body whether or not there was actual physical injury. Battery can involve violence, force, or simply touching someone in a hostile or offensive manner.1,9 Although surgery may not be considered violent, hostile, or offensive by health care professionals, it is a violation if it is committed without the patient’s informed consent. Furthermore, liability, which means finding someone did something legally wrong, does not need to be assigned for the patient to declare battery (ie, the person who feels battery has occurred does not need to show physical injury to win a lawsuit).10

Residents and the Informed Consent Process The 2004 Centers for Medicare & Medicaid Services (CMS) guidelines7,12,21 required the informed consent document to
name all health care professionals performing significant surgical tasks and
describe the specific tasks the resident would be performing (opening and/or closing; harvesting grafts; dissecting, removing, or altering tissues; implanting devices). The 2007 CMS guidelines7,22 eliminated some of these requirements because they created more problems than they 608 j AORN Journal

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solved.7 The 2007 CMS guidelines require the informed consent process to include the following with respect to residents:
informing the patient that a resident will perform portions of the procedure,
deciding which resident will perform portions of the procedure before the patient goes into the OR,
determining the resident’s role based on his or her skill set and the patient’s condition, and
ensuring that the surgeon supervises the resident.7,22 According to the AMA18 and the ACS,7 the consent process must include informing the patient when a resident will be working under the supervision of the surgeon during the procedure and introducing the resident to the patient. The informed consent process should include the resident’s name, level of experience and training, and role, and the patient’s agreement for the resident to participate should be documented.3,11 The only time it is permissible for a resident to be involved in the surgical procedure without the patient’s approval is during an emergency when the patient cannot give consent and the procedure is life or limb saving.1 The choice of surgeon has been deemed to be so important that courts have stipulated this choice to be equally important to obtaining consent to the procedure itself.10

Reluctance to Inform Patients About Residents A major reason surgeons have given for withholding information about residents from patients is related to the fear of patients refusing to allow their participation.14 Most patients have chosen their surgeons and developed a relationship with them. Having a complete stranger introduced as one of the assistants or as a participant who will perform the surgery under supervision can be unwelcome, especially when this introduction does not occur until the morning of the surgery, and this information may result in the patient denying consent. Since the 1970s, the topic of disclosing trainee involvement has been debated.13 Most surgeons today agree that providing complete explanations to their patients increases the likelihood that patients will agree to allow a resident to be an active participant. In fact, most people would agree that it is reasonable for residents to perform surgery provided they are supervised and only if they are capable of performing the procedure.14 On the other hand, it is important to recognize that some patients are not appropriate candidates for resident involvement13 because of the complexity of the

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procedure, the resident’s skill level, or the patient’s anxiety level or condition. When the surgeon provides education and engages in a frank discussion with the patient, it increases the likelihood the patient will allow a resident to participate. Preoperatively, the surgeon should talk to the patient and
provide reasons why surgical training is important and that it is provided based on the resident’s progress,
explain that the resident works under the direct supervision of the surgeon,
introduce the resident to the patient and explain his or her credentials,
describe the extent to which the resident will participate and the supervisory role of the authorized surgeon,
explain that the ultimate responsibility for the surgery lies with the attending surgeon,
answer all questions concerning the resident that the patient asks, and
inform the patient that it is not required that a resident participate and that the patient may decline to agree.1,13 The surgeon should document what is discussed with the patient on the consent form or in the progress notes.

Patient Responses to Resident Involvement in Surgery There is the potential a patient will not want a resident to participate in the procedure, and that request must be honored. Patients have many reasons for denying resident participation. A common reason is that the patient may not want to be a “teaching opportunity” for the resident and may expect the chosen surgeon to spend his or her energies and talents on the scheduled procedure and not act as a supervisor, provide guidance for a resident, or be a minor participant.10 There is conflicting information on how patients react to the discussion about having residents involved in their treatment. If all patients denied consent to residents, it would have a negative effect on surgical residency programs and the training of future surgeons.2 It is possible that how the information is delivered and the degree to which the resident is participating may affect the patient’s decision. A study by Nguyen et al23 suggested that 84% of patients would not consent to cataract surgery if the degree of resident involvement was shared with them. In a study involving patients undergoing ophthalmologic procedures,13 researchers found patients to be amenable to having the resident perform the surgery

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under the guidance of the attending surgeon when these topics were discussed beforehand. In fact, these researchers found that providing this information openly did not result in patients denying residents’ participation the majority of the time. Instead, 95% of the patients in this study consented to resident participation when they were provided with a full disclosure.13 Thomasma and Pickleman suggest that surgeons should spend the time needed to explain why it is important for residents to be involved in patients’ surgeries by “evoking the patient’s sense of community and an altruistic response to helping serve the needs of the community.”3(p23) Granted, this may be an expansive viewpoint. Nevertheless, it is possible to explain to patients about resident participation in a way that patients do not request their exclusion from the procedure.13 Some physicians continue to question why it is necessary to inform the patient about a resident. Researchers have provided examples of some of these questions, which include the following:
“The type of anesthetic agent used for the eye block, the surgical approach, and the specific intraoperative and postoperative eye drops for cataract extraction are not discussed with the patient e so, why must a resident’s involvement be discussed?”13
“Why aren’t college teaching assistants (TAs) who correct papers or teach courses called ‘ghost teaching’?”3

WHAT DOES IT MEAN TO SUPERVISE? One of the most contentious issues surrounding ghost surgery is the definition of supervision. To supervise people means to direct, watch over, or oversee the performance or operation of others to maintain order.24 Synonyms for the word supervision include control, guidance, instruction oversight, surveillance, charge, counsel, and direction.25 The attending physician may act as an assistant or a supervisor while the resident operates, or he or she may be the primary surgeon when the other person is in a learner role or when assisting. Although “every patient deserves to know that his surgeon will be responsible, present, and in charge in the operating room,”5(p743) patients need to also understand that surgery involves a team approach with different levels of responsibility attributed to all parties.5,14 Connell8 defines supervising as a flow of alternating work between the operating surgeon and the resident. When working with others, surgeons do not make every cut or tie every knot. For example, in some circumstances, it is safer for the surgeon to stop the bleeding or expose the site for the resident to cut and sew.

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In the teaching hospital setting, residents are personally involved in the surgery to the point that they perform major parts of the procedure but “only in so long as the personal, identifiable physician is fully involved throughout all aspects of patient care.”6(p380) The attending surgeon should be present to offer guidance and control risk during any surgery involving a resident, and under these circumstances, most patients are comfortable moving forward.11 Courts have decided in favor of the surgeon when there is adequate supervision for the resident during the procedure and when the patient gives consent for the resident to act as the operating surgeon.10

The Surgeon’s Presence According to the ACS, the overriding goal at all times is patient safety, acknowledging that the surgeon’s responsibility is for the patient’s welfare and cannot be delegated or evaded. The ACS also states that the surgeon should be in the OR or the immediate vicinity for the duration of the surgical procedure but that he or she can delegate performing part of the procedure to the resident as long as the patient is aware of the resident’s presence and role.7,10,11 In addition, it is proper for the responsible surgeon to delegate the performance of part of a given operation to assistants, provided the surgeon is an active participant throughout the essential part of the operation.10(p149-150) The ACS does not define essential (ie, critical period), and identifying what is essential is for the surgeon to determine.7,10 A surgeon’s absence for surgery-related tasks is acceptable as long as the absence is brief. Examples of this type of absence include
conferring with the pathologist or radiologist in his or her respective department,
obtaining additional consent from the family for unexpected changes in the procedures (eg, removal of an organ), and
taking a short break during long procedures. However, the surgeon needs to be available for immediate recall from any absence and a qualified substitute for the surgeon must stay with the patient during his or her absence.7 Unanticipated circumstances also can occur that require the surgeon to leave the OR before completion of the procedure. The surgeon could become ill or injured during positioning or by a sharp instrument or have a personal family emergency. In these situations, he or she must identify a qualified substitute who can arrive promptly in the OR, and the patient needs to be told about this urgent change postoperatively.7 If the 610 j AORN Journal

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surgeon leaves the procedure for an illegitimate reason, does not find a qualified substitute, or is gone for an inordinate length of time, the nurse should notify departmental and hospital administrators who can initiate the peer review process.7 A gray area regarding the surgeon’s absence exists when none of the previously described situations are the reason for him or her leaving the OR. The phrase that requires a surgeon to be an active participant throughout the essential part of the operation is vague and implies, but does not definitively state, that the surgeon is scrubbed in. The more difficult phrase is essential part of the operation. The AMA, the ACS, nursing organizations such as AORN, and regulatory bodies have not created a clear definition of what this phrase means, and there is no agreement among surgeons or specialties. Questions that arise on this issue include the following:
Do surgeons agree on what is the critical part of the procedures performed in their specialty?
How should nurses speak up on behalf of their patients if there is no agreed-on definition for each type of procedure?
How does the nurse determine what to do if the surgeon leaves the room or does not return during a particular point in the surgery that the nurse believes to be essential?
What should happen when the surgeon is scheduled to perform surgery in two OR suites simultaneously? How does the nurse advocate for the patient when asked questions about who will perform the surgery when this information has not been shared by the surgeon? There also is no definition of the phrase inordinate length of time, which makes it difficult to question a surgeon’s behavior if the nurse believes he or she has been absent from the OR for an unacceptable period of time. These issues involve crucial conversations with the personnel and managers involved to come to a safe resolution for patients. Without a clear-cut policy on what these terms mean and what surgeons must comply with, it is hard for nurses to be comfortable with responding to their patients’ questions about residents and their role or questioning surgeon behavior.

MULTIDISCIPLINARY ROLES Staff nurses cannot be expected to curtail the practice of ghost surgery alone. This is an administrative and organizational issue that needs to be acknowledged and addressed by perioperative nurse managers and facility directors and administrators. However, staff nurses who have good rapport with particular surgeons should not be afraid to broach the subject with them

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The Lifflander Report In 1978, the Lifflander Report was commissioned by Stanley Steingut, who was Speaker of the State Assembly of New York at the time, and its purpose was to uncover unethical conduct in surgery. An incident in Smithtown Hospital, Suffolk County, New York, initiated this report; a surgeon called a sales representative back to the OR to scrub in and assist the surgeon with an improperly implanted hip prosthesis.1 Some facts uncovered in the creation of this report included the following:
50% to 95% of surgeries were performed by residents in teaching hospitals;
most residents performed surgery under the close supervision of the attending surgeon;
some residents operated without supervision during some parts of or for the entire procedure;
most patients were not told about the degree to which the residents were involved in their surgery;
consent forms only included generic statements such as “assistants as he shall select” without naming the resident who will be scrubbed in for the procedure; and
patients obtained the best surgical and postoperative care at teaching hospitals, and there was no evidence showing that having residents in the OR resulted in harm to patients.2 Surgeons who were interviewed by the task force members agreed they should tell their patients who was responsible for the patient’s surgery, but then semantics came into play. Physicians gave the phrase being responsible a more generic meaning (ie, even if the attending surgeon was not scrubbed in, it is the attending surgeon who owns ultimate responsibility for the patient’s welfare). In fact, some surgeons felt the extent of resident participation in the surgery was within their sole discretion and not a matter which had to be disclosed to the patient . . . or for which his consent was required any more than a decision to use a particular brand of surgical sponge would be.2(p417) Yet, patients tended to equate the phrase being responsible with performing surgery, especially because it was the attending surgeon who the patient saw preoperatively and postoperatively. The Lifflander task force agreed that the attending surgeon should provide full disclosure for an informed consent and

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Ghost Surgery

that the resident should work under sufficient supervision to ensure patient safety. The report recommended that physicians obtain the patient’s consent for each person who would be assisting in the procedure and that vague phrases like such assistants as he may select not be used on the consent.2 This requirement meant that the surgeon could not obtain full consent until the day of surgery, when the patient could meet the resident, the patient could ask questions related to this specific person’s role, and the resident’s name could be added to the consent. The Lifflander report also recommended placing a limit on the number of patients an attending surgeon could treat and the number of ORs he or she could reserve at one time for scheduled procedures. A bill to this effect that also included language precluding the attending surgeon from leaving the OR until surgery was substantially complete passed in the New York State Assembly in June 1978 but died in committee in the Senate.2

References 1. Thomasma DC, Pickleman J. The ethical challenges of surgical training programs. Am Coll Surg Bull. 1983;68(6):18-23. 2. Holmes MK. Ghost surgery. Bull NY Acad Med. 1980;56(4): 412-419.

while the patient is in the holding area so that the surgeon remembers to speak with the patient about the resident or other assistants and their role during the procedure and includes that person’s name on the consent before the patient signs it. A classic preoperative question from anxious patients is “My doctor will do my surgery, right?” Nurses should not make statements they know could be fallacious (eg, “Of course the surgeon will perform the surgery”) to keep the patient calm or to avoid causing problems for the nurse, the patient, or the surgeon. Patient advocacy is one of the most important roles the perioperative nurse performs. Patients deserve truthful information and frank discussions when making health care decisions. Placating and pacifying patients is not in alignment with the ANA’s Code of Ethics for Nurses.16 Instead, the nurse should contact the surgeon and ask that he or she go to the patient’s bedside to answer any questions that the nurse cannot answer or is uncomfortable answering. Surgeons alone should not be expected to determine the critical components of a procedure for which they need to be scrubbed in because too much license can be taken with what critical component means, and subjective assessment can be illogical (from the patient’s perspective) or based on invalid assumptions and personal preferences. Determining the critical AORN Journal j 611

Dunn

component of each procedure requires consideration about what makes it critical and takes into consideration the stability and known comorbidities of the patient. Many surgeons are scrupulous in defining these terms, but others are not. If administrators decide to allow physicians to leave the OR and/or have residents or others perform surgery, then they must write policies that clearly delineate the critical component of each type of procedure (for all specialties) for which the attending surgeon must be present and stipulations about preoperative discussions with the patient regarding who will be doing what during the procedure. Administrators, managers, and nurses must not ignore the topic of ghost surgery or allow policies to contain ambiguous, ill-defined, or generic catchall phrases. Educators or the facility’s risk managers should design mandatory education sessions for surgeons to review the informed consent process and their legal obligation to the patient. Members of the risk management department, corporate compliance department, and legal counsel should be present during these sessions as well. These sessions can include assistance in how to speak with patients and their family members about residents, the need for residents to learn and be involved in procedures, and the residents’ roles during the procedure. Perioperative nurses expect and must have the support of their managers and directors when it comes to eliminating unsafe or questionable practices in their departments. Rising to this occasion is difficult and requires finesse on the part of nurses, managers, and administrators.

CONCLUSION An annual Gallup poll asks people “How you would rate the honesty and ethical standards of people in different fields?”26 Nurses routinely rank first or very close to the top among other professionals. The latest poll ranked nurses in first place with an 82% score, followed by pharmacists (70%), grade school teachers (70%), and medical doctors (69%). Over the past five years, nurses ranked in the 81st to 85th percentile.26 The public views the nursing profession in a very positive light and places its trust in nurses. Deliberating on topics such as ghost surgery is important to improve perioperative practice; by facing and discussing difficult issues, nurses can make inroads in improving patient care. The first step in remedying the practice of ghost surgery is to admit the problem exists. Nurses can share this article with colleagues, charge nurses, supervisors, managers, or directors to help acknowledge the problem and start thinking of ways to

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handle it. Ghost surgery thrives because nurses and managers have not had the tools, resources, or support to stop the practice. Part of the difficulty of addressing this subject is that surgery is a revenue generator for facilities, and surgeons who bring business and patients to an organization wield power. Neither nurses nor administrators want to lose a surgeon to another institution; however, if a surgeon’s practices are negatively affecting patient care or are unethical, it is important to address this even if it means that the surgeon stops practicing at the facility. Perioperative nurses are encouraged to become familiar with the provisions and principles in the ANA Code of Ethics for Nurses16 and to embody its principles. It is not always going to be an easy path to follow these provisions, but society requires nurses to be the patient advocatedand the public trusts nurses to be honest and ethical. It is time to start having frank discussions with our health care peers about ghost surgery, and physicians and administrators need to work collaboratively on eradicating it.




Acknowledgment: The author thanks Eleanor Silverman, MLS, AHIP, medical librarian at St Joseph’s Regional Medical Center, Paterson, NJ, for her assistance in the acquisition of articles on this topic.

References 1. Lundmark T. Surgery by an unauthorized surgeon as a battery. J Law Health. 1996;10(2):287-296. 2. Holmes MK. Ghost surgery. Bull NY Acad Med. 1980;56(4): 412-419. 3. Thomasma DC, Pickleman J. The ethical challenges of surgical training programs. Am Coll Surg Bull. 1983;68(6):18-23. 4. Annas GJ. The care of private patients in teaching hospitals: legal implications. Bull NY Acad Med. 1980;56(4):403-411. 5. Foster JH. Who does an operation? [Editorial]. Arch Surg. 1981; 116(6):743. 6. Polk HC Jr. Private patient care and residency training: a surgeon’s viewpoint. Bull NY Acad Med. 1980;56(4):378-384. 7. Statements on Principles. American College of Surgeons. FACS.org. https://www.facs.org/about-acs/statements/stonprin. Accessed September 21, 2015. 8. Connell JF. Ghost surgery: interview by Jim Hoffman. Fam Health. 1978;10(7):24-27. 9. Gore DM. Ethical, professional, and legal obligations in clinical practice: a series of discussion topics for postgraduate medical education? Introduction and topic 1: informed consent. Postgrad Med J. 2001;77(906):238-239. 10. Kocher MS. Ghost surgery: the ethical and legal implications of who does the operation. J Bone Joint Surg. 2002;84(1):148-150.

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December 2015, Vol. 102, No. 6 11. Jones JW, McCullough LB. Consent for residents to perform surgery. J Vasc Surg. 2002;36(3):655-656. 12. In compliance with the new hospital informed consent requirements. Bull Am Coll Surg. 2007;92(10):38-39. 13. Gan KD, Rudnisky CJ, Weis E. Discussing resident participation in cataract surgery. Can J Ophthalmol. 2009;44(6):651-654. 14. Levin AV. The secret of teaching surgery. Can J Ophthalmol. 2009;44(6):642-643. 15. Schloendorff v. the Society of the New York Hospital (105 N.E. 92) 1914. Court of Appeals of New York. Lawandbioeithics.com. http://www.lawandbioethics.com/demo/Main/LegalResources/C5/ Schloendorff.htm. Accessed September 7, 2015. 16. Code of Ethics for Nurses. American Nurses Association. http:// www.nursingworld.org/codeofethics. Accessed September 2, 2015. 17. The ethics of “ghost surgery.” October 1999;1(2). FACS.org. http://journalofethics.ama-assn.org/1999/10/hlaw1-9910.html. Accessed September 21, 2015. 18. Opinion 8.16dSubstitution of Surgeon without Patient’s Knowledge or Consent. American Medical Association. http://www .ama-assn.org/ama/pub/physician-resources/medical-ethics/code -medical-ethics/opinion816.page. Accessed September 2, 2015. 19. Dailey TH, Leff EI. Resident surgery e is it safe? Dis Colon Rectum. 1978;21(2):85-88. 20. Fiduciary. The Free Dictionary. http://legal-dictionary.thefreedictionary .com/fiduciary. Accessed August 31, 2015.

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Ghost Surgery 21. CMS Manual System. Centers for Medicare & Medicaid Services. https://www.cms.gov/site-search/search-results.html?q¼2004%20 informed%20consent%20guideline. Accessed August 31, 2015. 22. Revisions to the Hospital Interpretive Guidelines for Informed Consent. Centers for Medicare & Medicaid Services. https:// www.cms.gov/site-search/search-results.html?q¼42%20CFR% 20482.51(b)(2)%20pertaining%20to%20surgical%20services %20informed%20. Accessed September 7, 2015. 23. Nguyen TN, Silver D, Arthurs B. Consent to cataract surgery performed by residents. Can J Ophthalmol. 2005;40(1):34-37. 24. Supervise. Dictionary.com. http://dictionary.reference.com/browse/ supervise?s¼t. Accessed September 21, 2015. 25. Supervise. Thesaurus.com. http://www.thesaurus.com/browse/ supervise. Accessed September 21, 2015. 26. Honesty/Ethics in Professions. Gallup. http://www.gallup.com/poll/ 1654/honesty-ethics-professions.aspx. Accessed September 2, 2015.

Debra Dunn, MSN, MBA, RN, CNOR, is a staff nurse in the OR at Saddle River Valley Surgical Center, LLC, Paramus, NJ. Ms Dunn has no declared affiliation that could be perceived as posing a potential conflict of interest in the publication of this article.

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EXAMINATION

Continuing Education: Ghost Surgery: A Frank Look at the Issue and How to Address It 2.4

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PURPOSE/GOAL To provide the learner with knowledge specific to understanding ghost surgery and its consequences.

OBJECTIVES 1. 2. 3. 4.

Describe ghost surgery. Explain the ethical and legal considerations related to ghost surgery. Discuss informed consent. Describe multidisciplinary activities that may be taken to prevent ghost surgery.

The Examination and Learner Evaluation are printed here for your convenience. To receive continuing education credit, you must complete the online Examination and Learner Evaluation at http://www.aorn.org/CE.

QUESTIONS 1. Ghost surgery occurs when someone other than the attending surgeon who obtained consent performs an operative or other invasive procedure without the patient’s knowledge. a. true b. false 2. Relevant legal concepts that are applicable with regard to ghost surgery include 1. the intentional tort law of battery. 2. negligence. 3. informed consent. 4. individual rights to body integrity. 5. rights to material information. 6. the duty to disclose. a. 1 and 2 b. 3, 4, and 6 c. 1, 2, 4, 5, and 6 d. 1, 2, 3, 4, 5, and 6 3. Nurses must bring forward difficult issues for discussion and take appropriate actions when any health care team member is providing incompetent, unethical, illegal, or

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impaired care by bringing the issue to the attention of the nurse manager or director. a. true b. false 4. The physician’s signature on the consent form attests to the fact that he or she is performing the surgery and that he or she may delegate this role to another person without explicit consent from the patient. a. true b. false 5. The American College of Surgeons states that informed consent is 1. not a legal requirement. 2. a legal and ethical requirement. 3. not a standard of ethical surgical practice. 4. an ethical practice. a. 1 and 4 b. 2 c. 3 d. 1 and 3 6. Informed consent is a shared decision-making process that requires the surgeon to explain

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1. 2. 3. 4. 5.

the surgery. the risks and benefits of the planned surgery. alternative treatments. information in layman’s terms. the surgical procedure completely and in explicit detail. a. 4 and 5 b. 1, 2, and 3 c. 1, 2, 3, and 4 d. 1, 2, 3, 4, and 5

7. When residents assist on or perform surgical procedures, the term ghost surgery applies in instances including when the patient 1. is unaware that the resident scrubs in to assist the surgeon. 2. is unaware the resident scrubs in and is acting as the primary surgeon while the attending surgeon supervises. 3. has not met the resident and is unaware that the resident is the sole operating surgeon. 4. has met the resident and knows the resident is acting as the primary surgeon but does not know the authorized surgeon will not be present. 5. has met the resident but does not know that he or she is acting as the sole operating surgeon. 6. has met the resident and understands that he or she will perform the surgery. a. 1, 3, and 5 b. 2, 4, and 6 c. 1, 2, 3, 4, and 5 d. 1, 2, 3, 4, 5, and 6 8. Ghost surgery is considered a break in the fiduciary physician-patient relationship and is considered deceit. a. true b. false

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Ghost Surgery

9. Ghost surgery is cause for legal action by the patient against the authorized surgeon for 1. assault. 2. battery. 3. fraud. 4. malpractice. 5. emotional distress. a. 3 and 5 b. 1, 2, and 4 c. 3, 4, and 5 d. 1, 2, 3, 4, and 5 10. Multidisciplinary efforts that can be taken to curtail the practice of ghost surgery include 1. staff nurses broaching the subject with surgeons with whom they have good rapport. 2. staff nurses contacting the surgeon to answer patient questions that the nurse cannot answer or is uncomfortable answering. 3. surgeons working with other team members to determine what “critical component” means with regard to surgical procedures. 4. administrators writing clear policies that delineate when physicians may leave the OR and have residents perform surgery. 5. administrators, managers, and nurses not ignoring the topic of ghost surgery. 6. educators designing mandatory education sessions for surgeons to review the informed consent process and their legal obligation to the patient. a. 1, 2, and 6 b. 3, 4, and 5 c. 2, 3, 4, and 6 d. 1, 2, 3, 4, 5, and 6

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LEARNER EVALUATION

Continuing Education: Ghost Surgery: A Frank Look at the Issue and How to Address It 2.4

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T

his evaluation is used to determine the extent to which this continuing education program met your learning needs. The evaluation is printed here for your convenience. To receive continuing education credit, you must complete the online Examination and Learner Evaluation at http://www.aorn.org/CE. Rate the items as described below.

7.

Will you be able to use the information from this article in your work setting? 1. Yes 2. No

8.

Will you change your practice as a result of reading this article? (If yes, answer question #8A. If no, answer question #8B.)

8A.

How will you change your practice? (Select all that apply) 1. I will provide education to my team regarding why change is needed. 2. I will work with management to change/implement a policy and procedure. 3. I will plan an informational meeting with physicians to seek their input and acceptance of the need for change. 4. I will implement change and evaluate the effect of the change at regular intervals until the change is incorporated as best practice. 5. Other: __________________________________

8B.

If you will not change your practice as a result of reading this article, why? (Select all that apply) 1. The content of the article is not relevant to my practice. 2. I do not have enough time to teach others about the purpose of the needed change. 3. I do not have management support to make a change. 4. Other: __________________________________

9.

Our accrediting body requires that we verify the time you needed to complete the 2.4 continuing education contact hour (144-minute) program: _____________

OBJECTIVES To what extent were the following objectives of this continuing education program achieved? 1. Describe ghost surgery. Low 1. 2. 3. 4. 5. High 2.

Explain the ethical and legal considerations related to ghost surgery. Low 1. 2. 3. 4. 5. High

3.

Discuss informed consent. Low 1. 2. 3. 4.

4.

5.

High

Describe multidisciplinary activities that may be taken to prevent ghost surgery. Low 1. 2. 3. 4. 5. High

CONTENT 5.

To what extent did this article increase your knowledge of the subject matter? Low 1. 2. 3. 4. 5. High

6.

To what extent were your individual objectives met? Low 1. 2. 3. 4. 5. High

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