MGH records sought in double-booking review

10 years of documents concerning practice of double-booking cases

Massachusetts General Hospital.Globe Staff Photo/Pat Greenhouse

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Federal prosecutors have subpoenaed 10 years of internal records from Massachusetts General Hospital and have interviewed several physicians as part of an investigation into surgeons running two operating rooms at the same time, according to individuals with direct knowledge of the probe.

Some MGH staff members have raised concerns for years about double-booked operations in the renowned hospital’s orthopedics department, a dispute little known to the public until a Globe Spotlight Team report last month. Hospital officials say concurrent surgery is safe and improves efficiency, but critics say the practice is risky and that, too often, patients are not told their surgeon plans to manage a second, simultaneous case.

The investigation, involving prosecutors from US Attorney Carmen Ortiz’s health care fraud unit as well as state Attorney General Maura Healey’s office, is focused on possible abuse of government insurance programs, according to people briefed on the probe. Medicare allows surgeons to bill for concurrent surgery, but they must abide by several restrictions, including a requirement that the attending surgeon be present for the “critical” parts of both operations.

Mass. General officials last week sent a memo to employees promising they would not face internal discipline if they speak to investigators, but cautioning that they should not share confidential records and certain hospital documents, including schedules, medical records, and safety reports.

“MGH is cooperating fully with the investigation,” said the memo from Toby Unger, a lawyer for Partners HealthCare, MGH’s parent company, and John Belknap, the hospital’s chief compliance officer.

Hospital officials Friday issued a written statement to the Globe saying: “We are confident that our practices meet or exceed any regulatory requirements and reflect our deep commitment to delivering the highest-quality, safest care to every patient and family.”

Prosecutors issued the subpoena for hospital documents this summer and have questioned several double-booking critics, including Dr. Dennis Burke, a hip and knee surgeon who led the opposition until he was dismissed by the hospital in August after he shared redacted medical records of his own surgical cases with the Spotlight Team.

Prosecutors separately subpoenaed various documents from Burke on the practice of concurrent surgery at MGH in July. Investigators also plan to interview hospital leaders, including Dr. David Torchiana, chief executive of Partners, and Dr. Harry Rubash, chief of orthopedic surgery at MGH, according to those familiar with the effort.

Dr. Akshay Dalal, an anesthesiologist who has said he once observed a resident perform an entire operation unsupervised while the attending was responsible for at least one other procedure, told the Globe that he briefly spoke on the phone to representatives of the attorney general’s office.

“Surgery by an unsupervised resident is inappropriate,’’ Dalal, who retired in 2013, told the Globe.

The doctor Dalal referred to previously told the Globe that he did not recall any such situation and that Dalal had never directly raised a concern.

Unger and Belknap, in their widely distributed memo, said hospital employees could be contacted by investigators at home, on evenings, or on weekends.

They said it is up to staff members to decide whether to speak to investigators unless subpoenaed, but, if they do, the hospital is willing to provide them with an attorney at no cost. The memo also described the document request received by MGH as common in government inquiries.

The Spotlight report, headlined “Clash in the name of care,” stirred fresh scrutiny of a practice common at many hospitals, restricted or banned at others, but seldom studied or discussed publicly. Administrators at several hospitals circulated the article, physicians sharply debated each other on Twitter and medical websites, and one surgeon gave a talk on the subject on Friday at the MacLean Center for Clinical Medical Ethics in Chicago.

In concurrent surgeries, one surgeon oversees two operations that overlap in part or their entirety. Though often called “simultaneous” surgeries, they do not involve the surgeon working directly on two patients at once; rather such cases are handled in successive stages, with the surgeon moving between one case and the other.

Such cases constitute some 15 percent of the 37,000 surgeries performed at Mass. General each year, according to figures the hospital provided. About 1,000 surgeries a year involve what is called “procedural overlap,” involving at least one patient with an open incision while a second case is underway.

Locally, some hospitals distanced themselves from double-booking. MGH’s sister hospital, Brigham & Women’s, issued talking points to employees that said the hospital allows some cases to overlap, but bars surgeons from performing two operations simultaneously.

New England Baptist Hospital, which specializes in orthopedic surgeries, posted a message to patients on its website “to assure you that we do not practice concurrent surgeries at any of our locations.” However, hospital officials acknowledged in an interview that some surgeons do leave one operation before it’s finished to start a second, relying on fellows, residents, and physician assistants to close surgical wounds.

St. Elizabeth’s Medical Center, meanwhile, e-mailed employees a “scripted statement’’ for them to share if questioned, saying that “concurrent surgery is not practiced’’ at the hospital.

MGH set up a website for patients in response to the Spotlight report and sent out e-mails to employees defending double-booking.

“There is no quality and safety issue that the MGH has scrutinized more carefully in recent years than overlapping surgery,’’ Dr. Peter Slavin, the hospital president, and Dr. Thomas Lynch, head of the Massachusetts General Physicians Organization, wrote employees on Oct. 30. “We do not believe that the Globe article provided a fair and balanced description of surgical practices at MGH.’’

A hospital spokeswoman said MGH has had no cancellations or postponements of surgeries and only a handful of questions from patients.

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Roughly a dozen people who had surgery at MGH have contacted the Spotlight Team and asked whether their operations were double-booked. At least one of these patients had indeed shared his surgeon with another patient, according to operating room schedules, e-mails, and medical records obtained by the Globe. The patient said he was never told his case would be double-booked and said he would not have proceeded with the surgery if he had known.

Surgeons at many teaching hospitals across the country run two rooms, but the practice varies widely and there is little consensus and scarce scientific literature on how much overlap is safe or appropriate. MGH and some other hospitals do not require surgeons to tell patients when they are performing concurrent operations — though MGH officials said they encourage disclosure — something that patient advocates say is essential to obtain informed consent.

At MGH, anesthesiologists and other medical staffers complained for years about simultaneous cases where surgeons allegedly didn’t show up for operations, leaving the work to a resident or fellow; cases where an urgent need arose and the doctor was attending to another patient in a second room; cases where patients waited for prolonged periods under anesthesia for a doctor to arrive or return; and cases of patient complications, including two that ended with the deaths of elderly patients.

MGH officials have disputed the validity of almost every one of the allegations and said their analysis of hundreds of orthopedic surgery cases from 2013 and from 2014 found no significant difference in complication rates between overlapping and nonoverlapping cases. They described the practice as an extension of the teaching hospital’s team approach, pairing senior doctors with residents and fellows. One of the few scientific studies of the practice, by a University of Virginia researcher, found no increase in complications in surgeries overlapping by up to 45 minutes.

Mass. General officials have also pointed to two outside reviews which they say validate their practices — an endorsement from a national surgeons’ group and a state Department of Public Health report.

Both reviews, however, were limited in scope.

In April, Dr. David Hoyt, executive director of the American College of Surgeons, called Mass. General’s 2012 procedures and policies on concurrent surgery an “example of best practice and certainly exceed national standards,” in a letter to Mass. General’s chief of surgery, Dr. Keith Lillemoe. Lillemoe and his predecessor, Dr. Andrew Warshaw, who was president of the American College of Surgeons, requested the review, according to Hoyt.

The hospital cited the endorsement in a letter to patients as evidence that “our surgical practices are very safe and among the strongest in the nation.’’

But in an interview last week, Hoyt said he used “best practice” to describe what he called MGH’s “forward thinking” to develop the guidelines, not the policy itself. He noted that the American College of Surgeons has no concurrent surgery policy of its own and said no other hospital has asked him to assess its guidelines in his six years leading the surgical association.

“The issue is a relatively new one for people to consider,’’ he said.

Mass. General officials have also repeatedly cited an investigation this year by the Massachusetts Department of Public Health as proof that the hospital’s practice of concurrent surgery is sound and safe. The study found that a complaint filed late last year by an unidentified individual alleging poor surgical care was “invalid.”

But state public health officials acknowledge they visited the hospital only once, never spoke to critics of double-booking, and examined only a handful of cases from the past two years as well as associated documents. A spokesman for the agency said its staff spent a total of 28 hours on the review.

By comparison, the state Board of Registration in Medicine, which oversees individual doctors, has had an open investigation of MGH surgeons’ double-booking practices running for three years.

As the Spotlight Team was investigating the allegations by critics of simultaneous surgeries, federal and state prosecutors this summer started contacting current and former employees at MGH and seeking documents. Federal prosecutors met with Burke — at their request — in June and subsequently subpoenaed all of his records on concurrent surgery.

Investigators are focused mainly on protecting the government from fraud rather than the safety of concurrent surgery and the ethics of not telling patients, according to individuals with direct knowledge of the inquiry. Federal Medicare rules allow attending surgeons at teaching hospitals to bill for two overlapping operations, but they do impose some restrictions, including that the teaching surgeon must be present for the critical parts and designate a backup physician.

Prosecutors from Attorney General Healey’s office are focusing on rules governing MassHealth, the state’s Medicaid program. MassHealth requires that the surgeon must be “scrubbed and present in the operating room during the major portion of the operation” in order to get paid.

The US attorney has both criminal and civil prosecutors assigned to the case, reflecting that the probe is at an early stage when it is unclear what kinds of violations, if any, may be found.

The voluminous records sought from the hospital include bills for surgical procedures, e-mails about simultaneous surgeries, and any internal reviews of the practice, according to individuals with knowledge of the inquiry. Some of the records requested relate to hospitalwide practices and are not limited to the orthopedic surgery department, which was the focus of the controversy at MGH and the Spotlight report.

The request to examine MGH’s own internal reviews would appear to include an investigation by former US attorney Donald Stern, who was hired by MGH and interviewed about 60 employees about concurrent surgeries.

The hospital has refused to share his 2012 report with state regulators or the Globe, citing attorney-client privilege and confidentiality promised to those interviewed.

The scope of the document request “tells me the US attorney is quite serious,” said Barbara Anthony, a former state and federal prosecutor who has worked on both criminal and civil cases.

“Ten years is definitely on the heavy lift side. However if this is a fraud investigation — the government will want to go back as far as it can legally and practically.”

In last week’s memo to employees, Partners and Mass. General officials said that, unless prosecutors serve them with a subpoena, the employees are under no obligation to answer their questions. They also cautioned those who do cooperate with the investigation: “First, you must tell the truth: knowingly making false statements to investigators is a federal crime.”

Meanwhile, the hospital’s General Executive Committee recently upheld the termination of Dr. Burke, who has been the lead internal critic of double-booking. His last day was Tuesday, ending a 35-year career at Mass. General.

Slavin, the hospital president and a member of the executive committee, has said Burke was fired not for raising concerns about double-booking but for sharing copies of medical records with the Globe. Burke provided redacted copies of records relating to hundreds of his own surgeries to rebut MGH’s accusation that he had himself often performed the kind of concurrent surgeries he has crusaded against.

Burke intends to appeal his dismissal further, which could ultimately put the matter before the hospital board of trustees.

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