DOCTOR IN CHARGE
OF SURGERY WASN'T THERE FOR MOST OF IT, SUIT ALLEGES
PATIENTS NATIONWIDE SAY RESIDENTS ARE OPERATING WITHOUT THEIR PERMISSION
AMA CALLS PRACTICE "DECEITFUL"
By John G. Carlton
Post-Dispatch Medical Writer
Copyright St. Louis Post-Dispatch
Oct. 31, 1999
Edited by Virginia Baldwin Gilbert
Cathy Elsea didn't claim to know everything about the complicated surgery she was facing a few years ago to correct a misaligned jaw.
But she had confidence it would go well because she knew the oral surgeon who was to perform the operation. At least she thought she did.
As it turned out, the procedure -- which took more than six hours and involved cutting away and reattaching her jaw -- was performed by three oral surgery residents being trained at St. John's Mercy Medical Center in Creve Coeur.
Dr. John J. Delfino, then chairman of the hospital's department of oral surgery, director of the training program and the physician in whom Elsea entrusted her care, was apparently seeing patients at his office elsewhere in the hospital complex while the operation took place, one of those residents has testified.
Delfino was not present when one of the doctors he was supposed to be supervising encountered a complication that left Elsea's jaw broken into three pieces, the resident said in a sworn statement.
Exactly what transpired that morning in May 1990 is the subject of a lawsuit alleging malpractice and fraud. It is scheduled for trial later this year in St. Louis County court.
Hospital officials have denied any wrongdoing in this surgery or in the operation of their training program for residents, doctors who are graduates of medical or dental school and who work at a hospital for a certain number of years to undergo more specialized training.
Hospital officials said the training program was operated "consistent with standards of the appropriate residency review organizations."
Delfino, who retired in 1997, said through his attorney that he provided Elsea with "an exceptional level of care and treatment that was carried out in the most ethical and conscientious manner possible."
Delfino said he was in the room for "a substantial majority" of Elsea's surgery, and that he "provided direct supervision in all facets" of the case.
But according to the sworn statement of a resident, Delfino was there for only the beginning of the operation.
The resident and a medical office assistant testified it was not uncommon for Delfino to be absent while residents he was supposed to be supervising performed surgery. Other physicians, nurses and hospital support staff knew but did nothing to prevent it, the two testified.
Doctors have a name for the practice of substituting one surgeon for another without the patient's permission. They call it "ghost surgery."
The American Medical Association calls it "deceitful."
In its code of ethics, the AMA says: "The patient is entitled to the services of the particular surgeon with whom he or she contracts . . . If a resident or other physician is to perform the operation . . . it is necessary to make a full disclosure of this fact to the patient."
That's been the association's thinking since at least 1969. Both the American College of Surgeons and the American Association of Oral and Maxillofacial Surgeons also condemn the practice.
And yet, legal cases filed around the country in recent years suggest ghost surgery is widespread.
In 1997, the world-renowned Cleveland Clinic was ordered to pay $14.5 million to the family of a woman who was left permanently brain damaged after surgery on her nose.
Dr. Isaac Eliachar, the doctor named in that suit, testified that he assured his patient he would perform the surgery. Instead, it was done by a resident.
During the trial, Eliachar said he didn't believe his patient had a right to know that he was not going to be present for the operation. Eliachar had three other surgeries scheduled for the same time, an attorney for the brain-injured woman said.
And a case now pending in California Superior Court claims ghost surgery is routinely practiced at all six large teaching hospitals in the University of California system.
It's done, the suit claims, because hospitals can't charge for the services of a medical resident. But they can -- and do -- charge thousands of dollars for the "professional services" of a doctor who serves on their faculty.
In preparing their case, attorneys reviewed surgical records selected at random from one of the large teaching hospitals, the University of California at Davis Medical Center. They found evidence of ghost surgery in 37 percent of those cases, they said.
"The government tacitly approves of this. Medicare billing rules say that they'll pay for up to three operations being conducted simultaneously," said Martin Blake, the San Francisco attorney who's handling the case.
"Doctors know about it. Hospitals know about it. The government knows about it. The only ones who don't know are patients," Blake said.
All of the patients involved in these suits claimed they weren't told a resident or other doctor would perform their surgery. But in some cases, at least, even when they directly asked who would operate, patients said they were misled.
The Cleveland case is hardly the only example. Cases filed in several states during the late 1970s and early 1980s contain the same allegation.
In a recent interview, Elsea said she had asked for and received assurances from Delfino that he would personally perform her surgery.
"I knew they had a training program and I didn't want one of the residents doing my case," said Elsea, a 44-year-old St. Charles resident who previously worked as a nurse in the hospital's psychiatric unit. "He always would answer 'Yes, don't worry. I'll do your surgery. You'll be fine.'"
Later, when she continued having pain, Elsea said, she asked Delfino if there had been any problems with the operation. She said she was told it had gone well.
Delfino denied that he told Elsea he would handle her case personally. And he has said he doesn't consider what happened to Elsea's jaw to be a complication.
In late 1992, Elsea got copies of her medical records from St. John's. Even then, she had no clue about who actually performed the surgery, she said.
The operative notes list Delfino as "attending physician" on the case, meaning he was responsible for the patient's care.
In a deposition taken for an earlier case, however, one of the residents involved in the case said Delfino was not in the room for the operation.
And in another deposition late last year, the same resident testified that Delfino would "frequently" be in his office examining patients at the same time he was listed in operating room logs as attending physician on a case.
Dr. Jon Lebsack, the former resident, testified that he had been instructed to list Delfino as the attending doctor for any maxillofacial (jaw and mouth) surgery case -- whether Delfino was present or not. The only exceptions, he said, were cases handled by one of Delfino's partners.
Documents indicate Delfino was the hospital's highest paid employee during the mid-1990s.
Records St. John's Mercy filed with federal regulators show that in 1995, for example, the hospital paid Delfino a salary of $428,135. That's $50,000 more than the hospital's president and CEO earned that year and doesn't include income from Delfino's private practice.
Delfino said the residents -- who had already graduated as dentists and were taking additional specialty training -- were fully qualified to perform the surgery. He said he was required to give them hands-on experience as part of their training.
In its code of ethics, the AMA says that if a resident performs an operation under the "non-participatory supervision" of another doctor, the resident should be considered "the operating surgeon" and the patient should be informed of the switch.
And officials at St. John's Mercy appear to agree.
The hospital's operating room policy, which was revised earlier this year, states that the attending physician "must be physically present in the operating room during the conduct of a procedure for his name to appear on the operating room log."
Elsea said she continues to suffer as a result of the surgery. "I will probably have to live with pain for the rest of my life," she said.
Not long ago, Elsea saw another oral surgeon. He concluded that her jaw is farther out of alignment today than it was before her 1990 operation, she said.
To fix it, he has prescribed another surgical procedure.
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