MGH settles for $13m with doctor who challenged double-booked surgeries

Dr. Dennis Burke at his Milton home in 2015.DINA RUDICK/Globe Staff/FILE

For four years Dr. Dennis Burke practiced medicine under a cloud. The prominent orthopedic surgeon had been fired by Massachusetts General Hospital in 2015 for allegedly violating patient confidentiality. But Burke always believed he had been dismissed for raising safety concerns about colleagues who performed two operations at once.

On Thursday, he received extraordinary vindication. Mass. General agreed to pay him $13 million and offered him his old job back to settle his wrongful termination lawsuit. MGH also agreed to honor Burke with a hospital safety initiative in his name, according to his lawyer, Ellen Zucker.

“I started working at the MGH as a teenager, returned as a resident and then member of its staff. It was my professional home,” said Burke, a 67-year-old hip and knee specialist whose patients have included former secretary of state John Kerry. “I am glad that this dispute can be put behind us.”

Burke’s criticism of concurrent surgery to state regulators and the Globe Spotlight Team helped spur a national debate in the medical community and roiled Mass. General, where he worked for 35 years. He said he doesn’t want to return to MGH since he now practices at Beth Israel Deaconess Hospital in Milton. But he was pleased by the settlement and credited the renowned Harvard-affiliated teaching hospital for changing surgery practices since he left.

Dr. Anne Klibanski, chief executive of Partners HealthCare, parent company of Mass. General, said she was happy with the outcome and, in a startling reversal by the institution, praised Burke.

“We are very grateful for Dr. Burke’s efforts to shine a light on questions of surgical safety and quality that led to the development of important improvements in our institutional policies and improved the care we deliver at MGH,” Klibanski said in a joint statement with hospital officials provided by Zucker.

Klibanski became chief executive of Partners in June, succeeding Dr. David Torchiana, who was chief executive when Burke was fired. Torchiana received a number of e-mails and personal entreaties from Burke as Burke waged a years-long campaign to get MGH to crack down on surgeons who juggled simultaneous operations without patients’ knowledge.

Dr. Peter Slavin, president of MGH, and Dr. Timothy Ferris, who heads the hospital’s physicians’ organization, struck a decidedly different tone.

“Mass. General strongly defends and stands by the decisions it made along the way,” they said in an e-mail to the hospital community

However, they said the trial probably would not have begun until 2021 and “there has been a growing desire at the MGH to move beyond this lawsuit.”

Though many surgeons at teaching hospitals schedule operations to overlap by a few minutes — letting trainees close the surgical wound of the first operation while the surgeon moves on to the second — the debate at Mass. General focused on surgeries, mostly in orthopedics, that overlapped for much longer, sometimes for hours.

Burke and other critics of the practice, including several anesthesiologists who act as the eyes and ears of sleeping patients, said that it was dangerous and that patients hadn’t consented beforehand to share their surgeon.

MGH insisted that it fired Burke for improperly releasing hundreds of his own patient records, with names redacted, to the Globe. Burke shared 15 months of records to rebut hospital accusations that he himself engaged in double-booking. A Globe review determined that only a small number of Burke’s cases overlapped with the start of others, averaging just a few minutes.

“Dr. Burke was terminated for serious misconduct and violations of the MGH’s confidentiality standards,” the hospital said in a 2017 statement after Burke filed suit. “He was not terminated because of his concerns about concurrent surgery.”

But Burke contended that was a pretext and that he was dismissed because he blew the whistle on what he considered a serious patient-safety issue.

The Spotlight Team series about the double-booking controversy led to new guidelines by the American College of Surgeons. It also prompted a powerful US Senate committee to call on hospitals to explicitly prohibit “concurrent surgeries,” which the committee defined as two operations, managed by the same surgeon, whose critical parts occur at the same time.

The issue of double-booking became a key component in at least three medical malpractice lawsuits against Dr. Kirkham Wood, a former spine surgeon at MGH who left in 2015 to work at Stanford University Medical Center.

One of those suits was filed by former Red Sox pitcher Bobby Jenks, who said he suffered a career-ending spine injury when Wood operated on his back while overseeing another operation at the same time. Jenks settled that claim against Wood and the hospital in May for $5.1 million.

The settlement between Burke and the hospital was announced hours before a scheduled hearing in Suffolk Superior Court about a judge’s order for MGH to provide Burke with a report on concurrent surgeries that the hospital has kept secret for years. The report was prepared by former US attorney Donald Stern, who was hired by the hospital in 2011 to investigate Burke’s complaints.

In 2015, Slavin, MGH’s president, told the Globe that Stern “found no basis to support Dr. Burke’s concerns.’’ But the hospital strenuously fought to keep the report under wraps. Lawyers for the hospital said it contained legal advice and privileged peer-review material. A judge rejected those arguments in September and ordered it turned over. It remained under wraps Thursday.

But as Burke’s legal team from Burns & Levinson prepared for trial, his attorneys had dug up records that might have embarrassed hospital officials.

Some of those records were available in the public court docket and reviewed by the Globe. In court filings, records showed that a crisis-management consultant retained by the hospital e-mailed a hospital spokeswoman in 2015 suggesting the Stern report found problems with surgeons performing simultaneous surgeries in two operating rooms.

“Also, after re-reading the Stern report, it recommends that MGH do overlapping surgery but not simultaneous. Did that stop?” wrote the consultant, Justine Griffin, of Rasky Baerlein Strategic Communications, to the spokeswoman, Peggy Slasman. “From our conversations, it sounds like it didn’t.”

Those court filings also contained a 2012 e-mail from Dr. Keith Lillemoe, the hospital’s head of surgery, to MGH officials about a recent spine surgery case that Burke had complained about. A Westwood financial analyst, Tony Meng, had become a quadriplegic a few weeks earlier after his surgeon, Wood, overlapped his operation with another spine patient’s for more than five hours.

“I can not fathom that if this case is as complex as is suggested why any surgeon would ever consider trying to ‘double book’ on this day,” Lillemoe wrote. “I really worry that Dennis’ sources in anesthesia are such malcontents that stories like this will eventually surface.”

In 2017, a Boston jury found that Wood failed to inform Meng that he planned to operate on two patients at once, but the jury concluded that the doctor’s divided attention did not cause the man’s quadriplegia.

Court filings also included a September deposition from Dr. Peter Dunn, medical director of the hospital’s operating rooms. Dunn acknowledged that an analysis of complication rates in orthopedic surgeries wasn’t as thorough as the hospital portrayed to the Globe.

The analysis supposedly found no significant difference in complication rates between surgeries that overlapped and those that didn’t. But Dunn acknowledged that the analysis had significant omissions, including a review of concurrent surgeries done at Mass. General Waltham by one of the most controversial surgeons, Dr. Jon J.P. Warner, head of the hospital’s shoulder service.

Under the terms of the settlement announced Thursday, the hospital offered to restore Burke’s clinical privileges and reinstate him as a member of the medical staff, Zucker said. But, because he declined, the hospital’s board of trustees is instead appointing him as a member of MGH’s honorary staff.

The safety initiative in his name will feature an annual lecture to which he and residents in Harvard’s combined orthopedic residency program will be invited.

MGH faces a separate whistle-blower lawsuit in federal court in Boston by a former MGH anesthesiologist, Dr. Lisa Wollman, who alleged that a handful of orthopedic surgeons repeatedly kept patients waiting under anesthesia longer than was medically necessary or safe as they juggled simultaneous operations.

Reacting to Thursday’s settlement, Wollman said: “Especially in an era where medical decisions are often tempered by monetary goals, the Hippocratic obligation to do no harm must also mean speaking out when the patient’s interests are compromised or when the health care system is being gamed.”