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Surgical Overlap

An Ethical Approach to Empirical Ambiguity

Hyson, Peter, MA, MD*; Macauley, Robert, MD, FAAP, FAAHPM; Sexton, Kevin, MD; Sanford, Joseph, MD§

International Anesthesiology Clinics: January 2019 - Volume 57 - Issue 1 - p 18–31
doi: 10.1097/AIA.0000000000000210
Review Articles

*Department of Internal Medicine, University of Colorado, Aurora, Colorado

Department of Pediatrics, Oregon Health and Sciences University, Portland, Oregon

Department of Surgery, Division of Acute Care Surgery, University of Arkansas for Medical Sciences, Little Rock, Arkansas

§Department of Anesthesiology, University of Arkansas for Medical Sciences, Little Rock, Arkansas

The authors declare that they have nothing to disclose.

Address Correspondence to: Joseph Sanford, MD, 4301 W. Markham, Slot 515, Little Rock, AR 72205. E-mail: jasanford@uams.edu

Medicine is a team effort, particularly in the perioperative arena. An operation cannot proceed without surgical technologists, circulating nurses, anesthesiologists, and a host of logistic and support staff. The surgeon does not and cannot operate alone. In a teaching hospital, the operating team grows to include learners: medical students, residents, and fellows, all working under the auspices of the attending physician to learn the art of medicine. Historically, the surgeon might determine that it is reasonable to leave an operation, in part or whole, in the hands of a trainee and move on the next case. The surgeon might even run 2 ORs at the same time, doing part of an operation in one room and overseeing their assistant in another, allocating tasks as skill-sets and learning opportunities dictate. Armed with this knowledge, many patients might not consent to the procedure. For instance, a 2016 study of bariatric surgery patients found that although 86% of patients would consent to residents and students observing an operation, only 56% of patients would consent to a resident assisting during a procedure and only 14% would allow the resident to perform the procedure while the surgeon observed.2

Traditionally, hospital administrators and perioperative leaders, acting primarily as gatekeeper and safety net in the credentialing and privileging process, have not objected to the practice of surgeons running multiple rooms. After verifying adequate training, the execution of clinical care is largely deferred to the surgeon until there is cause to intervene. Whether it is acceptable for a surgeon to conduct multiple surgeries simultaneously depends on one’s perspective. The surgeon might view this paradigm as a sensible delegation of time, tasks, and expertise. The hospital administration might view this as a way of maximizing surgeon productivity and increasing patient access to scarce specialists. Patients, however, might see concurrent surgery as a compromise of their safety, spreading a surgeon’s attention in the name of fiscal productivity.

The priorities of patients, surgeons, and health systems presumably align when it comes to providing a safe surgical environment that minimizes complications. However, from the perspective of the patient, there might be conflicting and competing interests. Historically, the literature has not provided clear direction and regulations have not been rigorously audited. Currently, physicians and health care systems bear the burden of responsibility and accountability for determining best practices with respect to surgical overlap. To broaden the discussion, we review an approach based in biomedical ethics, with attention paid to the viewpoints of surgeons, hospital administrators, and patients to provide situational awareness and perhaps even some direction for future actions.

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Background

Concurrent and overlapping surgery has become a front-page topic in both the medical community and popular media. These 2 terms have distinct meanings. “Concurrent” refers to the practice of a single surgeon running 2 or more surgeries simultaneously where he or she is not present for all key and critical portions of each surgery. “Overlapping” refers to the scheduling of surgeries such that the surgeon is always present for key and critical portions of each surgery, even though operative time coincides.3

In 2015, The Boston Globe Spotlight Team brought national attention to concurrency, specifically in spinal surgery at the Massachusetts General Hospital, in an article titled, “Clash in the Name of Care.”4 This investigation led to a 2016 Senate Finance Committee inquiry of concurrent and overlapping surgery and an update to the American College of Surgeons (ACS) “Statements on Principles.” The Senate Committee eventually produced a series of recommendations, summarized below, using pre-existing billing regulations of the Centers for Medicare and Medicaid Services (CMS) as monitored by The Joint Commission, which referenced the principles and practices mandated by the ACS.5 Current billing regulations for physician services in the teaching setting can be found in the CMS Medicare Claims Processing Manual.5 (pp18),6 CMS will not reimburse concurrent procedures and both the ACS and the Senate Finance committee endorse the determination that concurrent operations are not appropriate in the elective setting. However, overlapping cases are of ethical interest because they remain an open subject in both how overlap is precisely determined and when backup is and is not needed. To date, Senate Finance Committee recommendations to CMS for updated billing regulations have not been instituted.

Both the CMS and ACS provide latitude for interpretation of what is overlapping by the definition and attestation of critical or key portions of surgery. CMS leaves the determination of these portions to the discretion of the attending surgeon, stating that “opening or closing of the surgical site” does not usually comprise a critical or key procedure and that the teaching surgeon must only “personally document in the medical record” their presence during the procedure. ACS guidelines add that these are the portions that require “essential technical expertise and surgical judgment.”1 Should a teaching surgeon not be in the operating room (OR) during noncritical portions of the case, they must be “immediately available.” The definition of immediate availability is somewhat vague with respect to time and distance and is only clarified, as opposed to exemplified, in the regulations by the text “ie, he/she cannot be performing another procedure.” The ACS, meanwhile, defines immediately available as “reachable through a paging system or other electronic means, and able to return immediately to the OR.”5 (pp19–20) The ACS does not assign a time span, giving latitude to local institutional definitions. Further, the designation and definition of a qualified backup surgeon is similarly murky. The requirements, whether the surgeon is qualified to perform the procedure in its entirety or a mere portion to stabilize a patient in extremis, are not well defined.5 (pp19) For informed consent, CMS merely advises that patients be informed of the “physicians, including residents, who will perform important surgical tasks and whether the teaching physician will not be physically present … for some or all of the … tasks performed by residents.” Similarly, the ACS suggests that patients be informed in advance if overlap is planned or after the fact if an emergency required that the surgeon leave the room.

Despite the prevalence of the practice, current evidence for patient outcomes is mixed. Most studies have been retrospective and subspecialty specific, thereby limiting generalizability. Using the ACS National Surgical Quality Improvement Program database from 2014 to 2015, researchers showed that patients undergoing overlapping surgeries did not have a higher risk of severe morbidity or mortality, reoperation, or readmission.7 Similar studies in neurosurgery and otolaryngology have not shown an increase in complications8,9,10 or mortality rates.11 Other studies have found that these overlapped procedures have longer operative times.12,13,14 A recent population-based, matched cohort study showed a higher risk for surgical complications for patients undergoing hip surgery when procedures overlapped.15

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Ethical Foundations

An ethical basis for the practice of medicine, given the field’s fundamental role in human welfare, is of paramount importance. When competing interests collide, a definition of good and right action is seldom straightforward. For this discussion, we will examine these differences through 4 of the most prominent ethical systems: Consequentialism, Deontology, Principlism, and Virtue Ethics.

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Consequentialism

Consequentialism asserts the “rightness or wrongness of … action is exclusively a function of the consequences resulting.”16 Utilitarianism, its most well-known derivative, originated from the writing of Jeremy Bentham and John Stuart Mill. It measures all actions by their capacity to result in a metric of “utility,” generally understood to be synonymous with happiness or pleasure. This utility is not merely happiness achieved by one person, but rather the net of happiness or pleasure received by all people. This ethical approach is commonly subdivided into act-based and rule-based utilitarianism. Act-based utilitarianism requires a kind of calculation to determine which action will result in the greatest possible short-term and long-term utility to the greatest number of people, whereas rule-based acknowledges the former’s impracticality and substitutes rules that, if generally followed, would tend to promote utility.16 (pp9)

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Deontology

A deontological or a duty-based approach to ethical behavior stresses that the “rightness or wrongness of human action is not exclusively … a function of the goodness and badness of consequences.”16 (pp5) Immanuel Kant approached ethical reasoning around the requirement of respecting the categorical imperative: “act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.”16 (pp18) This Kantian ethic of “respect for persons,”16 (pp18) lays the groundwork for the biomedical principle of “autonomy.” Kant then subdivides moral actions into the perfect and the imperfect. Perfect duties are absolute prohibitions against treatment of humans as means to an end, that is there is no situation in which lying or killing is ethical.16 (pp19) Imperfect duties are recommendations toward positive action that should further human welfare. Perfect duty generally takes precedence over imperfect duty.

Another derivative of deontology is contractualism, espoused by Thomas Scanlon and John Rawls. Contractarian deontology is useful where all actors wish to respect the autonomy of one another, but acknowledge that they might have competing interests, different points of view, and access to different information. A contract would then be used to set reasonable safeguards or a compromise between their interests. An act is wrong, according to Scanlon, “if its performance under the circumstances would be disallowed by any set of principles for the general regulation of behavior that no one could reasonably reject as a basis for informed, unforced, general agreement.”17 In essence, “do unto others only that to which they have consented.”18 This line of thinking is useful as it recognizes that both patients and physicians have limitations, fallibility, and self-interest. Provided that both parties act within the bounds of behavior and rules to which neither could “reasonably object,” they are acting ethically.

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Biomedical Ethical Principles

The most prominent modern approach to bioethics rests upon the 1977 work Principles of Biomedical Ethics by Tom Beauchamp and James Childress. They provide a moral approach to medical decision-making on the basis of the balancing of 4 principles: autonomy, nonmaleficence, beneficence, and justice.19

Autonomy refers to respecting each individual’s right to self-determination. An autonomous action should be intentional, informed, and sufficiently free of internal and external constraints,16 (pp41) thus the requirement that informed consent be obtained before treatment. Informed consent, per Beauchamp and Childress, requires the “threshold elements” of patient competence and voluntariness, the “information elements” of disclosure, recommendation and understanding, and finally the “consent elements” of decision and authorization.

Nonmaleficence is the principle of avoiding harmful action. This principle balances that of beneficence, the prescription to improve welfare. Justice, fundamentally the Aristotelian “equals must be treated equally, and unequals must be treated unequally,” is most applicable in this context as distributive justice, the equitable distribution of scarce resources.19 (pp242) Importantly, Beauchamp and Childress do not place these 4 principles in a strict hierarchy as their application to moral dilemmas requires that they be considered as a whole.

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Virtue Ethics

Virtue ethics places greater emphasis on the moral character of the agent than on the quality of the action.16 (pp28) In contrast to the questions of what and why something should be done, it addresses the question of who a person should be such that they will act in a moral way. The advantage to this line of thinking is that it considers the manner in which a person acts and the intention with which one acts, not merely the act itself and/or the act’s consequences. A “compassionate” physician, for example, does not necessarily perform different actions than an uncompassionate one, but we recognize that the manner of compassion gives the actions a different quality.16 (pp31)

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Ethical Considerations on Surgical Overlap

From these definitions, we can now examine the ethical considerations of overlap for the surgeon, the hospital, and the patient.

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The Surgeon

The physician’s most obvious task is to provide the best possible health outcomes both for individual patients and for all patients. An academic physician’s additional responsibility is to train future physicians through instruction and the graduated allocation of responsibility and accountability. In other words, the surgeon should sometimes refrain from completing every technical and clinical task so that the trainee can develop autonomy. Attending surgeons must weigh the question of patient safety through empirical data, their own previous experiences, and knowledge in the ability of their team. Ultimately, the surgeons bear the responsibility, both legally and clinically, for the entire operation when they are absent from the OR.

Secondarily, a surgeon might also be motivated by the prospect of career advancement, by pressure from superiors to increase relative value units, and by profit-seeking. Presumably, a surgeon can achieve these interests by completing a higher volume of more well-regarded or well-reimbursed surgeries. The surgeon might schedule overlapping surgeries to increase daily productivity, to broaden access to surgery for the wider patient population, or to facilitate training opportunities.20

The principlist surgeon would consider the ethical appropriateness of overlapping surgery as one of balancing the 4 biomedical principles. Respect for patient autonomy in this case signifies regard for the patient’s right to self-determination. Nonmaleficence is the desire not to harm the patient. Beneficence is achieving the desired outcome. Justice is the imperative to provide the most access to surgery and to train future surgeons.

Respect for autonomy hinges on the understanding that a patient has of the risks and benefits of overlapping surgery and whether the patient’s consent is fully informed. Although numerous court cases over the 20th century have contributed to the doctrine of informed consent, Canterbury v. Spence (1972) established much of the language of informed consent and the extent of disclosure. According to this ruling, physicians were expected to “satisfy the vital information needs of the patient”16 (pp66) and to disclose risks and benefits that any “reasonable patient” would expect to know. This was in contrast to Natanson v. John R. Kline and St. Francis Hospital and School of Nursing (1960), which earlier established that information provided to patients before procedures should include risks that any “reasonable medical practitioner” would disclose. Currently, US law is split, with some states following a “reasonable patient” standard of disclosure and others following a “reasonable physician” standard.

Disclosure should include information that is “(1) material in deciding whether to refuse or consent, (2) information the professional believes to be material, (3) the professional’s recommendation, (4) the purpose in seeking consent, and (5) the nature and limits of consent as an act of authorization.”19 (pp121) The question that the surgeon must answer is whether or not surgical overlap/concurrency is “material” to both the patient’s decision to consent to surgery and to the surgeon in assessing the risks and benefits. What is material to each is subject to informational imbalance and should be reconciled—the surgeon knows a great deal more about surgery and the patient knows more about their needs, preferences, and goals.21

From the surgeon’s perspective, and before the Spotlight Team expose, concurrency and overlap would have seemed no more material to consent than any other point of scheduling and staffing. “Our understanding of normal OR routines differs substantially from that of the public … Overlapping surgery may seem routine to health-care providers but may be completely unacceptable to healthcare consumers.”3 If the “reasonable physician” standard of disclosure is followed and the physician sees no potential harm in overlap, then technically it need not be disclosed. Given the public outcry over this practice, however, it should now be clear to all parties that the precise role of the surgeon and who actually conducts surgery is of material interest to patients.21 (pp601) A “reasonable patient” standard of disclosure would therefore include discussion of surgical overlap. Accordingly, the ACS “Statements on Principles” now recommends that surgical overlap and the presence and responsibility of the surgeon and team be part of informed consent and be disclosed well in advance of surgery.1

The degree of attention paid to these inherent risks during the consent process about overlap merits further examination. Although risk should be explicitly disclosed, even experienced surgeons often underestimate risk. Thus, nonmaleficence becomes the primary point of concern. Again, evidence to date is not conclusive on whether or not overlapping surgery is harmful, but no evidence of harm is not evidence of no harm.22 Studies suggest that the practice might lead to longer operative times, which may be undesirable. With equivocal data, different surgeons might espouse disparate views on surgical overlap depending on training and individual experience. From a conservative standpoint, standardizing the disclosure process for consistency when any overlap occurs would mitigate this ambiguity.

The surgeon also has a secondary duty to the wider population of patients and to patients in the future. Here, distributive justice implies that surgeons are responsible for the efficient utilization of health care resources. Any benefit to justice rests on the assumption that there is a net increase in population health by balancing efficiency against the possibility of harm. Physician training is also an issue of nonmaleficence, balancing the individual against distributive justice, because a less skilled practitioner performs a procedure that could be done by the more experienced attending. The patient treated by the trainee may not receive the optimal possible care and may be in greater danger of harm. Ultimately, although some patients must be put at risk of harm so that a wider population can receive benefit,3 (pp2048–2049) these circumstances are mitigated by appropriate supervision and graduated autonomy.

In overlapping cases, when a physician leaves the resident to close and moves on to the next surgery, the trainee learns from increased independence and future patients, vis-à-vis distributive justice, also benefit from the experience accrued by the trainee. This graduated autonomy is a necessary component of training future competent physicians. There is, however, the potential for error propagation while the attending physician is out of the room and unable to intervene immediately. Health care policies and regulations could mandate that attending surgeons remain in the OR at all times to maintain the safest possible clinical care. However, without the opportunities to test their knowledge and skills, new attending surgeons may lack confidence in their decision-making and clinical abilities, resulting in a tradeoff. Clinical care would be less safe in the long term because educational opportunities were limited in the short term.23 Prioritizing nonmaleficence over justice in the present could be argued to undermine nonmaleficence disproportionately in the future.

The consequentialist surgeon must weigh the quantity of good to reach a course of action. The benefits to society of overlapping surgeries include the availability of surgery for more people, greater potential revenue to surgeon or hospital, more training opportunities for residents, and perhaps faster acquisition of expertise and better clinical outcomes. The presumed benefits across a larger patient population must be weighed against the potential for harm to an individual patient. Further, there is also the question of disclosure: patients may not consent to overlapping surgery. Again, the opportunity to not consent must remain with the patient because there is no obligation for a patient to ascribe to the same ethical system as their surgeon.

Virtue ethics provides an alternative method for examining this issue. Given the lack of clear evidence on outcomes, the surgeon’s duty becomes a judgment call of what a “good surgeon” would do. As Pellegrino asserts, “We expect the virtuous person to do the right and the good even at the expense of personal sacrifice and legitimate self-interest.”24 The first question for the attending is: “Am I operating in the best way I know how?” In other words, “a surgeon performing overlapping procedures should have complete confidence that they can maintain focus on each patient’s surgery.”3 (pp2048) If this is the case, then the surgeon might utilize the golden rule: asking, as if they were the patient, how would they view some overlap of their case? As one orthopedist writes, “When I undergo an orthopedic procedure, I want my surgeon to perform the entire operation … I want him or her to be at the operating table providing or coordinating my care.”25 If the surgeon cannot honestly state that they are operating at the highest standards during overlapping cases and that they are providing the kind of care that they would wish for their grandmother to receive, then this would run afoul of virtue ethics.

Finally, if the surgeon is convinced that surgical overlap does not represent a compromise of clinical care, then the question of intent must be asked. Virtuous purposes for overlapping surgery would include expanding access to patients in need and educating trainees. Conversely, personal enrichment or advancement is unacceptable to the “virtuous physician.” One might argue that if overlapping surgery offers even the unintended consequence of increased revenue along with the above benefits to access and education, then this is enough to render it unacceptable. To the physician concerned with virtue ethics, therefore, overlap/concurrency in a private setting takes on a different flavor than overlap in the academic or nonprofit setting. In a hospital where there are no trainees, where the physician “eats what they kill,” it becomes hard to argue that a greater good is being served. Other motivations, present in both settings, become secondary to this concern with self-enrichment because there is no educational counter-balance. Although American society may worship the entrepreneurial spirit, virtue ethics certainly does not.

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The Hospital Administrator

Health care systems juggle 3 different, sometimes competing, priorities. The first is to ensure that each patient receives the best possible care and the best clinical outcome. Second, all patients in the health system should receive the best possible care and achieve the best possible outcomes. Third, the health system itself should remain financially viable and therefore capable of meeting requirements 1 and 2. The relative maximization of all the components often requires that one or more of the 3 objectives be suboptimal.

Hospital administrators are presumably neutral actors as they maintain distance from individual choices and interactions. However, by shaping the context in which patients and physicians interact, they can define the circumstances in which these decisions are made. Although patient autonomy dominates consideration in individual physician/patient encounters, justice is often the concern of an administrator. Distributive justice is served by maximizing patient access to care and by training more physicians to render care. If overlapping procedures facilitates efficiency or allows for more training opportunities, then it might be understood to promote justice.

Examining efficiency, Langerman argues that the only responsible way to carry out surgical overlap is through “staggering,” the dovetailing of surgical case start and end times.24 (pp601) Although this might be efficient for an individual surgeon or surgical service, it is questionable whether such a practice is actually efficient from a greater OR utilization and staffing perspective. Indeed, it might well contribute toward underutilized OR time.26 Here, the underlying mission and culture of the organization should be tested against the increased utilization of resource. Although it is necessary that a hospital be able to finance itself, only a consequentialist philosophy supports an ethical good derived from increased profit. One could certainly argue that a more profitable health care system is more capable of taking care of patients who cannot pay, but it also seems questionable whether a profit-driven system would actually be motivated to provide such charity.

This focus on operational efficiency does not abrogate regulatory responsibility designed to promote patient welfare by creating an environment that promotes patient safety and diminishes informational imbalance. Compliance in this respect now requires policies and practices prohibiting concurrency and consistently disclosing overlap. In addition, hospitals are tasked with collaborating with medical staff to create local definitions for “immediately available,” “qualified providers,” and what comprises “key and critical” portions of surgery.5 (pp17) This has ethical value inasmuch as taking some decision-making away from individuals minimizes practice variance and can elevate the group as a whole to a higher ethical standard. As noted above, disclosure is a clear issue of patient autonomy because it has implications for informed consent. Ideally, patients should not be pressured to make a decision. The consent process would require that the conversation occur in advance of the day of surgery and with no presumptions in the construction of the OR schedule. Should a patient refuse to be party to overlap when it was presumed in the schedule, the resulting inefficiency created through delaying rooms should be obvious. As public response suggests a breach of trust in these matters, macro-level policies addressing overlap can help restore and maintain confidence in health care institutions.

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The Patient

Interestingly, the patient perspective on this matter has been the most studied. A 2016 survey found that respondents were generally neutral with respect to overlap of noncritical portions of surgery, but were opposed to concurrent surgery.27 Respondents tended to believe that overlap was largely intended to increase revenue.27 Another study found that 78% of respondents would rather wait longer for surgery than have overlap in their surgical cases. However, most people were willing to accept overlapping surgery in the event of an emergency or where the risks are low and the person at the table is highly experienced. A majority of respondents stated that they wanted to be informed in advance of overlap, given an explicit definition of critical portions of surgery by the surgeon, and provided with documentation of when the surgeon would and would not be present in the room.28 The question raised for many patients by the concept of overlapping surgery, therefore, is “if my surgeon is out of the room who is operating on me?”21 (pp601) In short, there exists a trust gap and patients have become dubious about overlap because of the “plausibility of risk, lack of transparency, and conflict of interest.”29

Informed consent and complete disclosure are imperative for the maintenance of trust within the physician-patient relationship. They represent a way of signaling respect for autonomy, of maintaining long-term faith in the system, and of ensuring continued utilization by patients. When information is omitted, many people assume that that it has been concealed for nefarious reasons. Overlapping of surgery and trainee participation in procedures seem maleficent if they are undisclosed rather than discussed openly. Just as informed consent ideally presents surgery as one treatment option among many, overlapping surgery should be presented in advance as a surgical option with advantages and certain risks.28 (pp776)

Per virtue ethics, the intentions behind overlapping surgery matter. If somebody stands to gain materially from overlapping surgery, then patients will be more suspicious that they are likely to be at higher risk of complications. Surgeons and administrators need to be honest with themselves and their patients about whether surgical overlap creates justice through efficiency and access, is an educational tool, or is merely a revenue strategy. If justice and education truly are in the offing and if potential harm is minimal, then patients may like the opportunity to be enlisted into those efforts. The current evidence suggests that even while the idea of overlap is not, on its face, appealing to most patients, they are prepared to accept overlap if it is disclosed and is being done for a good reason. Langerman points out that the educational aspect of surgery could be conveyed as an asset rather than a compromise of care: “Resident involvement elevates care by bringing additional knowledge and viewpoints, providing direct assistance during cases … and questioning clinical decisions when appropriate.”21 (pp601) But even if trainee involvement in surgery represents more good than harm, patient autonomy ultimately requires full disclosure of surgical practice so that the patient may be better able to decide whether they would like to seek care in another venue.

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Conclusions

Careful consideration of the ethical underpinnings of overlapping surgery can help perioperative governance differentiate what should be done from what can be done. Most examinations to date have ultimately concluded that surgical overlap represents a disclosure issue and that, in light of unclear risks and benefits, the best approach is a kind of shared decision-making. Before patients can decide whether they should accept overlapping surgery, medical professionals should determine whether it is a reasonable, ethical option. Beyond the individual judgment calls of virtue ethics, an honest ethical examination will hinge on better understanding the risks and benefits of overlapping surgery. Only by defining the situations when the benefits outweigh the risks, acknowledging the financial motives that might exist, establishing when surgical overlap increases operational efficiency, and showing how this efficiency ultimately benefits patients will we be able to assess more fully the benefits of surgical overlap. Nonetheless, a surgeon should properly inform the patient about overlapping clinical responsibilities, the potential risks and benefits, and the level of involvement by the trainees and other staff. Perhaps, then, with the patient’s consent, surgical overlap might be ethically permissible.

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References

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