Massachusetts General Hospital on Friday agreed to pay $14.6 million to settle a federal lawsuit alleging it fraudulently billed government insurers for surgeries performed by trainees without proper oversight because supervising surgeons were working in another operating room.
The settlement marks the third time since 2019 that the renowned Harvard-affiliated teaching hospital agreed to pay millions of dollars to resolve a claim stemming from the controversial practice known as concurrent surgery, or double-booking, in which surgeons juggle two operations simultaneously. The three out-of-court settlements total $32.7 million.
The latest claim was brought by a former MGH anesthesiologist, Dr. Lisa Wollman, who alleged that at least five orthopedic surgeons regularly kept patients under anesthesia longer than medically necessary — sometimes more than an hour longer — because the doctors were working in two operating rooms. Wollman said she repeatedly witnessed and complained about the practice from 2010 to 2015, when she left MGH and filed a federal whistle-blower suit on behalf of the US and Massachusetts governments.
She alleged the hospital violated Medicare and Medicaid rules that require surgeons to be present for at least the critical parts of operations, though some overlapping of surgeries is allowed. The doctors also failed to designate a backup surgeon for trainees who might need help immediately in their absence. And, the suit alleged, government insurance programs were overbilled for anesthesia services because the practice of surgeons moving back and forth between operating rooms prolonged procedures.
“I did this entirely for patient safety and transparency,” said Wollman, who now works at New England Baptist Hospital and relinquished her position as an assistant professor at Harvard Medical School when she left MGH after 24 years. “My career trajectory hasn’t recovered. But it was a personal choice.”
Mass. General admitted no liability in the settlement, and leaders sent an e-mail to the hospital community on Friday night saying they were pleased to resolve the issue without further litigation.
“While the MGH continues to believe it always has complied with legal requirements regarding overlapping surgery, we determined that it would be most prudent to resolve the matter fully by settlement at this time,” wrote MGH president Dr. David F.M. Brown and Dr. Marcela del Carmen, president of the hospital’s physician organization.
Dr. Jim Rickert, a Bloomington, Ind., orthopedic surgeon and president of the Society for Patient Centered Orthopedics, said the settlement “sends a very strong signal.”
“There’s no world in which you should have a person under anesthesia for an extended period of time waiting for a surgeon when it’s all scheduled, elective surgery,” said Rickert, a longtime critic of surgeons who are absent from the operating room. “Any patient should think twice about going to an institution that sanctions this kind of behavior.”
Attorney General Maura Healey, whose office approved the settlement, said Massachusetts health insurers will share in the settlement money.
“Patients should be fully informed about the details of any medical procedure, especially when it comes to simultaneous surgeries,” said Healey in a statement. “This resolution returns nearly $2 million to MassHealth and the Group Insurance Commission, and requires updated consent forms at Mass General Brigham to improve transparency.”
A Boston Globe Spotlight Team series in 2015 first detailed that double-booking had provoked an extraordinary, long-running, and largely unseen controversy roiling the hospital. Mass. General gave orthopedic surgeons financial incentives to perform more procedures, and a handful of doctors regularly took advantage of the policy by scheduling concurrent surgeries in two rooms.
MGH leaders have forcefully defended concurrent surgery. They said the practice of overlapping operations was an efficient way to deploy the most talented physicians, allowing surgical trainees to perform routine tasks such as closing surgical wounds while attending surgeons move on to other cases. Nonetheless, the reports provoked a national debate in the medical community, a congressional inquiry, and regulatory changes in Massachusetts.
As part of the latest settlement, surgeons at all hospitals in the Mass General Brigham network will have to inform patients when they plan to overlap operations with those of other patients. Wollman said the surgeons she complained about never told patients that they intended to perform concurrent surgeries.
Her lawyer, Reuben Guttman, of the Washington, D.C., law firm Guttman, Buschner & Brooks, said Wollman’s suit will help set “a new standard of care in informed consent for overlapping surgeries.”
She sued under the False Claims Act, a federal law passed during the Civil War that enables a private citizen to bring a case on behalf of the federal government for fraud. She will receive about 25 to 30 percent of the settlement, Guttman said, and the rest will go to the federal and state governments.
Wollman was among several anesthesiologists who criticized double-booking in the Spotlight Team series. Another prominent critic, Dr. Dennis Burke, a leading orthopedic surgeon, was fired by the hospital in 2015 for allegedly violating patient confidentiality when the Globe interviewed him, which he denied.
Four years later Burke received extraordinary vindication. Mass. General agreed to pay him $13 million, offered him his old job back (which he declined), and named a safety initiative after him to settle his wrongful termination lawsuit in Suffolk Superior Court. Burke now practices at Beth Israel Deaconess Hospital in Milton.
The same year, MGH and a former spine surgeon there agreed to pay former Red Sox pitcher Bobby Jenks $5.1 million to settle a medical malpractice suit involving concurrent surgery. Jenks said he suffered a career-ending injury when the spine surgeon, Dr. Kirkham Wood, operated on his back while also overseeing another operation.
MGH said in a statement after the settlement that Wood provided “high-quality and appropriate care” to Jenks and that “overlapping surgery played no role in this case.” Wood left the hospital in 2015 and is a professor of orthopedic surgery at Stanford University Medical Center.
Although many surgeons at teaching hospitals schedule operations to overlap by a few minutes — letting trainees close the surgical wound of the first operation, for example, while the surgeon moves on to the second — physicians at MGH complained about surgeries that overlapped for much longer, sometimes for hours.
Wollman’s lawsuit listed 16 dates from 2011 to 2013 when five orthopedic surgeons allegedly performed at least two operations simultaneously over a period of hours. In every case, the suit said, patients lay under anesthesia longer than was warranted, increasing the risk of complications and inflating anesthesia charges.
The suit used pseudonyms for the five surgeons who Wollman said defrauded the Medicare and Medicaid programs. But the Globe was able to identify some of them based on earlier reporting.
One, identified as “Surgeon A,” was Dr. Jon J.P. Warner, the longtime chief of MGH’s shoulder service and one of the hospital’s highest-paid employees. Wollman’s suit said Surgeon A regularly booked two simultaneous operations in the morning and two in the afternoon.
Wollman said that in 2011, a 65-year-old patient waited under anesthesia for 90 minutes for Surgeon A to arrive from another operating room where he was operating on a second patient.
Yet, the suit said, the surgeon wrote on the patient’s operative note that he participated in the entire surgery. Wollman complained to hospital officials, the suit said, and the surgeon corrected his report.
Warner in the past has declined to discuss specific cases, citing patient privacy. In general, he wrote in a 2015 statement to the Globe, “The suggestion that I am not managing all my patients’ care while they are in the operating room is both untrue and malicious.’’
Wollman said another doctor “never appeared in the room’' for an April 2013 ankle operation even when the patient suffered a serious and sudden constriction of the airways, forcing a senior trainee to take charge.
But Wollman said senior medical officials at Mass. General did not follow up on her concerns about the surgeon’s absence during the emergency “except to threaten her by saying that she had violated patient privacy and could face legal action.’’
During the lawsuit, Wollman’s lawyers obtained a copy of a confidential review of double-booking that the hospital commissioned former US attorney Donald Stern to prepare in December 2011 in response to the complaints made by Burke and the anesthesiologists.
It painted a more complicated picture than hospital leaders had previously described. Stern said he could not find widespread evidence of false billing, trainees working without supervision, and patients harmed in double-booked operations.
He did say, however, “there have been isolated instances where the practice of some surgeons to run two rooms could have contributed to patient related problems.” He said seven of the roughly 60 orthopedic surgeons regularly ran two operating rooms, including several later mentioned in the Spotlight Team report.
Stern recommended that MGH review its policy on simultaneous surgeries, limit the procedures that multitasking surgeons could perform, clearly define the critical parts of surgeries, and revise patient consent forms.
Other documents obtained by Wollman’s lawyers and filed in court suggested that the hospital hadn’t addressed some of Stern’s recommendations several years later.
Two weeks after the Spotlight Team report in October 2015, Dr. Keith Lillemoe, the head of surgery, wrote the medical director of the operating rooms that “we ultimately will need to look closer at our disclosure policy, and I personally believe that we need to tell patients” when their surgeries will overlap with other cases.
“We should not do this immediately as to not make it look obvious that the Globe has affected our policy but at some point we need to look at this again,” Lillemoe wrote in the e-mail
“I completely agree,” replied Dr. Peter Dunn, who oversaw the operating rooms.
In the wake of the controversy, Massachusetts’ medical board in 2019 adopted new regulations that require doctors to provide more information to patients who are considering surgery and to document each time a lead surgeon enters and leaves the operating room. The rules, which medical experts described as among the most-far reaching in the country, faced stiff resistance from Massachusetts hospitals and physicians.
Jonathan Saltzman can be reached at email@example.com.