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Ghost Surgery

Surgery is unusual among medical treatments in that it is performed on voluntarily unconscious patients. This makes it possible to substitute surgeons without the patient's knowledge and permission. Surgical ghosts are ethically questionable and legally dangerous. Laypeople, including patients and jurors, do not believe that surgeons are interchangeable (fungible, in legal terms). They believe, rightly, that a patient's choice of surgeons is as important as the informed consent to the surgery. Intentionally misleading the patient about the surgeon's identity is fraud. Unintentionally misleading the patient could defeat the informed consent to the surgery. As one court found:

No "malice" or intent to injure, however, is required to establish battery in general or specifically, "ghost surgery." In Perna v. Pirozzi, 92 N.J. 446, 457 A.2d 431 (1983), the Supreme Court held that such a battery results when a medical procedure is performed by a "substitute" doctor regardless of good intentions. The Court there took notice of standards published by the Judicial Council of the American Medical Association, which read:

To have another physician operate on one's patient without the patient's knowledge and consent is a deceit. The patient is entitled to choose his own physician and he should be permitted to acquiesce in or refuse to accept the substitution. The surgeon's obligation to the patient requires him to perform the surgical operation: (1) within the scope of authority granted by the consent to the operation; (2) in accordance with the terms of the contractual relationship; (3) with complete disclosure of all facts relevant to the need and the performance of the operation; and (4) to utilize his best skill in performing the operation. It should be noted that 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. The surgeon, in accepting the patient is obligated to utilize his personal talents in the performance of the operation to the extent required by the agreement creating the physician-patient relationship. He cannot properly delegate to another the duties which he is required to perform personally.

Under the normal and customary arrangement with private patients, and with reference to the usual form of consent to operation, the surgeon is obligated to perform the operation, and may use the services of assisting residents or other assisting surgeons to the extent that the operation reasonably requires the employment of such assistance.

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, and this should be evidenced by an appropriate statement contained in the consent. If the surgeon employed merely assists the resident or other physician in performing the operation, it is the resident or other physician who becomes the operating surgeon. If the patient is not informed as to the identity of the operating surgeon, the situation is "ghost surgery." Judicial Council of the American Medical Ass'n, Op. 8.12 (1982).

Ghost surgery "remains a battery even if performed skillfully and to the benefit of the patient." Thus, the Court concluded that,

[i]f an operation is properly performed, albeit by a surgeon operating without the consent of the patient, and the patient suffers no injuries except those which foreseeably follow from the operation, then a jury could find the substitution of surgeons did not cause any compensable injury. Even there, however, a jury could award damages for mental anguish resulting from the belated knowledge that the operation was performed by a doctor to whom the patient had not given consent. Furthermore, because battery connotes an intentional invasion of another's rights, punitive damages may be assessed in an appropriate case.[235]

235]Monturi v. Englewood Hospital. 588 A2d 408 (NJ Super AD 1991), some citations omitted.

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