A prominent surgeon who publicly challenged the practice of allowing doctors to operate on more than one patient at the same time is suing Massachusetts General Hospital, alleging leaders illegally fired him for blowing the whistle on unsafe surgical practices.
Dr. Dennis Burke, whose criticism of concurrent surgery to state regulators and news reporters helped spur a national debate in the medical community on the practice, was fired in 2015 after 35 years at Mass. General. The hospital accused him of improperly releasing patient records with names redacted to the Globe, but Burke contends the real reason was his refusal to remain silent about what he is convinced is a serious patient safety issue.
“The institution got rid of Dr. Burke, and, in so doing, it sent a clear message to others on its staff, warning against the consequences of daring to speak to the government about issues of patient safety and compliance,” according to Burke’s lawsuit filed late Thursday in Suffolk Superior Court.
The dismissal of Burke, a highly regarded orthopedic surgeon whose patients include US Secretary of State John F. Kerry, came amid an investigation by the Globe Spotlight Team into Mass. General surgeons who operate on more than one patient at a time, often without informing the patients.
Officials at Mass. General, one of the nation’s top ranked hospitals, said at the time of the Globe report that they took Burke’s concerns seriously, even hiring a former US attorney to investigate and putting new limits on double-booked surgery in 2012. But they said Burke went too far, violating hospital policy by providing internal records for the Globe story, published two months after Burke’s firing.
“Dr. Burke was terminated for serious misconduct and violations of the MGH’s confidentiality standards, including taking 500 patient records from the hospital with neither permission nor patient consent and giving them to a Boston Globe reporter,” according to a statement issued early Friday from the hospital. “He was not terminated because of his concerns about concurrent surgery.”
Burke, who now practices at Beth Israel Deaconess Hospital-Milton, unsuccessfully appealed his dismissal to the Mass. General board of trustees before filing a wrongful termination suit. The hospital statement said that a committee of staff members and a trustees committee “separately reviewed the matter thoroughly and agreed with the decision to terminate Dr. Burke.”
But one of his lawyers, Ellen Zucker of Burns & Levinson in Boston, said Burke “should have been thanked for his service,” but “he was instead pushed out of the hospital that had been his professional home for over 35 years.”
There have been few serious studies into whether surgery patients who are double-booked are more likely to suffer complications, and there is presently no definitive evidence that they are. But medical ethicists say patients have a right to know if their surgeon will be working in more than one operating room.
Burke’s suit, which names Mass. General and its parent company, Partners HealthCare, as defendants, is believed to be the second filed by an MGH physician over a controversial surgical practice sometimes called “double-booking” or “running two rooms.”
Dr. Lisa Wollman, an anesthesiologist, filed a federal whistle-blower lawsuit in May 2015 alleging that at least five MGH surgeons juggled two or even three surgeries simultaneously, sometimes keeping patients waiting under anesthesia longer than medically necessary or safe — occasionally more than an hour longer. She alleged that the hospital had given surgeons financial incentives to do more procedures.
Her suit, which was not made public until this year, charges that the surgeons endangered patients and defrauded the government by submitting bills for surgeries in which they were not in the operating room for critical portions of procedures, leaving the work to unsupervised trainees. Wollman left MGH in 2015 and now works at New England Baptist Hospital.
Following that complaint, Mass. General released a statement defending its approach to surgery: “The MGH continues to believe that its practices comply with all applicable laws and regulations, and the hospital will defend the claims accordingly.”
Many of the allegations in Burke’s 33-page lawsuit were reported by the Spotlight Team in the first of a series of stories about double-booking at MGH and other teaching hospitals around the country.
Unlike Wollman, who contends she witnessed surgeons performing simultaneous operations first-hand repeatedly from 2010 to 2015, Burke said that he learned about it from alarmed colleagues and tried in vain, starting in 2008, to get hospital leaders to stop it.
“He urged MGH to halt this practice,” said the suit. “He also pointed out to MGH that the surgeons who were carrying out concurrently booked procedures routinely failed to disclose this risky practice to patients.”
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 — but Burke complained about surgeries that overlapped for much longer, sometimes for hours.
Among the surgeons he mentions in the complaint, without naming him, is Dr. Kirkham Wood, the chief of spine surgery at MGH, who left in late 2015 to become a professor of orthopedic surgery at Stanford University.
In February 2012, Burke learned that Wood had been the attending surgeon for a second operation while Wood was doing back surgery on Red Sox pitcher Bobby Jenks in December 2011. Jenks had publicly accused his surgical team of botching the surgery, which, he believes, ended his career.
“Can you imagine the harm that will occur to this institution’s reputation if it were to be discovered that this patient’s surgery was ‘double-booked,’ with the attending surgeon operating on two patients simultaneously?’’ Burke wrote to a Mass. General administrator in March 2012.
Hospital officials told the Globe in 2015 that Wood never left Jenks’s room during the surgery. But a medical expert hired by Jenks, who is suing Wood for alleged malpractice, has disputed the hospital account in court papers.
Burke’s suit also cites an August 2012 spine operation by Wood, after which the patient, a 41-year-old father of two, woke up a quadriplegic. That patient, Tony Meng, testified in January of this year that Wood never told him the surgeon planned to juggle his operation with that of another spine patient for more than five hours. Meng said he would never have consented to the operation had he known.
A Suffolk County jury concluded that the doctor’s managing of two overlapping surgeries did not cause the man’s quadriplegia and awarded no damages. However, the jury also found that Wood failed to inform Meng that he planned to operate on two patients at once.
Burke said in the suit that, over time, he became frustrated at hospital leaders’ lack of action on double-booked surgeries. When he saw little change, the suit says, he went to the state Board of Registration in Medicine and the Department of Public Health and then to the Globe.
“Voicing his objections in private out of a desire to be loyal to the institution that was his professional home had not prompted enough change to keep patients safe,” according to the suit.
The suit acknowledges that Burke provided to the Globe nearly 500 of his own patient records after redacting any information identifying patients. But Burke insisted that he did it only to rebut the hospital’s contention that he was a hypocrite who himself sometimes did simultaneous surgeries.
Burke charged that the president of MGH, Dr. Peter Slavin used that as a pretext to fire Burke, alleging that the surgeon had violated hospital policies.
The Spotlight reports about concurrent surgery at MGH and other teaching hospitals around the country touched off a continuing debate in the medical community.
In January 2016, the Board of Registration in Medicine gave preliminary approval to a new rule that would require surgeons to document each time they enter and leave the operating room. The proposal is still under review by the administration of Governor Charlie Baker.
Three months later, the world’s largest surgeons’ organization, the American College of Surgeons, issued its first-ever guidelines for surgeons managing simultaneous operations, saying the controversial practice is broadly permissible, within limits, but that “the patient needs to be informed” whenever a doctor runs more than one operating room at a time.
Last December, the powerful Senate Finance Committee urged all hospitals to explicitly ban surgeons from performing concurrent surgeries, which the committee defined as two operations, managed by the same surgeon, whose critical parts occur at the same time.
The controversy has even worked its way into fiction. Robin Cook, the author of best-selling medical thrillers, including “Coma,” used concurrent surgery as a plot element in his newly released novel, “Charlatans.’’
Burke hopes that the lawsuit leads to his reinstatement to “the institution he loved and that the hospital will recommit to caring for its patients with respect and honesty, one at a time,” said a second attorney for Burke, Robert F. Muse of Washington, D.C., who has represented whistle-blowers and prominent national politicians.Jonathan Saltzman can be reached at jonathan.saltzman