Duhaime's Law Dictionary


Ghost Surgery Definition:

Surgery performed by an unauthorized substitute surgeon.

In the context of tort law, ghost surgery occurs when, unknown to the patient, and not otherwise authorized by him or her, the surgeon allows some other surgeon to perform the agreed-upon surgery.

In Perna, Justice Pollock of the Supreme Court of New Jersey defined ghost surgery as;

"... the performance of the operation by a physician other than the one named in the consent form."

In a footnote in Perna, the Justice Pollock adopted these words of the Judicial Council of the American Medical Association1:

"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."

In American tort law, ghost surgery is actionable as a battery even in the absence of evidence of malice or intent to cause harm.

REFERENCES:

  • Monturi v Englewood Hospital, 588 A. 2d 408 (New Jersey, 1998)
  • NOTE 1: Judicial Council of the American Medical Association, Opinion #8.12, 1982 (now called the Council on Ethical and Judicial Affairs).
  • Perna v. Pirozzi, 457 A. 2d 431 (1983, Supreme Court of New Jersey)

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