Are Ghosts Performing Your Surgery ? Does that happen ? And how you the patient can avoid becoming a ghost in the process !

In this Article I discuss a not much talked about aspect of medical ” practices” that may, sometimes lead to complications and even death for the patient. Aspect which the medical fraternity would perhaps prefer not be mentioned, and which the Indian Law does not have any clear cut answers to !

But happen it does. So, since forewarned is forearmed , here goes !

The inherent complexity of a Medical Negligence case

Among various genres of crime, Medical Negligence is a very unique and complex one. An act of Medical Negligence is done without intent and upon patients who willingly submit their bodies to even life-threatening surgeries hoping for relief and with no idea of what is being done to them. And Doctors of course do not wish their patients harm, usually. Hence to begin with there is usually an underlying assumption of the hospital’s/ doctors’ innocence as the usual critical element of a crime- the intent – “ Mens rea” is missing.

Worse, the “crime” is practiced in private usually ( Operating Theaters ) and so no witnesses are present ( except those who themselves may have been party to the crime and so carry an inherent bias ). The only way the crime can be found at all ( except for the severest of cases where  the event “ speaks for itself” , as is held by the doctrine of res ipsa loquitor ) is perhaps by means of medical records.  Yet those medical records are fully in control of the perpetrators themselves and thus can easily be concealed, destroyed and manipulated with no one being able to do anything about them !

Even worse, the crime is done by Doctors who are quite well educated and experienced. They may have no “past criminal antecedents” as in other cases. On the other hand, they may well be respected and reputed members of the society ! If you ever have been involved in a medical negligence case, this most probably has been brought up !

Except that incidents of quackery are on the increase. So are doctors who have pretty much no experience dealing with patients in real life. As this article puts forward from a real, recent experience.

Add to this already very dangerous mix a general lack of awareness of patients, increasing awareness of consumer rights, quite neglected public medical facilities while at the same time increasing privatization and commercialization of ‘noble’ medical profession. And medical negligence cases are bound to rise very fast. While justice continues to elude and be delayed.This is clearly shown by a plethora of studies, including , for example, this one. 

Of course one factor of such delays is that while on one side of a medical negligence case is a patient / next of kin who has probably never set foot in a court and has very limited resources, opposing him / her are frequently large hospitals with large legal teams and multi billion dollars of revenues at their disposal.

In this rather bleak scenario of medical negligence several aspects have frequently popped up over the years, and at least case law brings out clear precedents to rely upon. These include lack of informed consent, manipulated / concealed records, sheer incompetence of attending doctors , lack of proper facilities at the treating hospital etc. etc.

However, with emergence of new “ business practices” are emerging newer concerns which as of now do not find clear elucidation either in case law or statutes based law. Only in some settled cases in the US and UK have such circumstances been recognized and adjudicated upon. One of these new phenomena is “Ghost Surgery “.

In India this is so much unknown that as of now, were you to search on this term, you will not find a settled Indian case on the same !

So WHAT is “ Ghost Surgery ” ?

Imagine this scenario. Rajesh’s mother is suffering from a brain related disease. Thankfully he has the money to seek an appointment with a renowned doctor presently working as the Head of the Department of an equally renowned hospital. He ( termed as Treating Doctor hereon ) advises immediate surgery, assures Rajesh of little risk and, of course, his high  competence. Thus assured Rajesh admits his mother there. On the day of the operation after some time two junior doctors appear beaming from the Operation Theater. The operation went well. Rajesh meets the Treating Doctor the day after ( the Treating Doctor does keep very busy, after all ) and thanks him profusely. Though he is a little puzzled as to why the Treating Doctor did not see him immediately after the operation, all’s well that ends well, of course.

Now take another scenario. The operation does NOT go well. The two junior doctors appear a little nervous from the operation theater but assure Rajesh the emergency – whatever it is – is being handled well. Rajesh immediately asks for the Treating Doctor. The two juniors say “ oh he was here just a few minutes ago, has just left for another task. “ Too confused and nervous, Rajesh does not even think of questioning further since doctors are , after all, working very hard to handle the emergency. After sometime his mother is taken to the ICU. The Treating Doctor meets Rajesh the day after and explains that the little risk he mentioned earlier unfortunately happened. But it was managed well and though Rajesh’s mother is in the ICU she will recover well. Situation will improve.

Rajesh’s mother is paralyzed and bedridden for life.

In both the scenarios Rajesh’s mother is most probably a victim of ghost surgery. Unknown doctors ( maybe not even doctors but trainees ! )  of unknown  competencies have operated upon her, perhaps to gain the much valued experience in the procedure. While luckily the first scenario ended well and so maybe never came out, the second led to serious consequences. Even then it may never come out. After all, who will even imagine such a scenario and even if so, how will it be proved ? All the witnesses are on the side of the hospital and the Treating Doctor. And all the records are in control of the Hospital and so easily manipulable.

Even if, somehow, it is proved that the Treating Doctor never operated on Rajesh’s mother, is that a crime ? After all there is no written contract between him and Rajesh and of course there were other qualified doctors present. So how is the Treating Doctor or the hospital liable ? And what of the first scenario ? When treatment went well, how can the Treating Doctor and the hospital be held liable , if at all ?

Is this situation looking strange to you ? After all, why would a Doctor leave his patient in the hands of others when he is being paid in full and the patient is trusting him to perform the surgery he has an excellent reputation in. Indeed exactly that reputation and expertise is why the patient has come to him in the first place !

WHY does Ghost Surgery happen ?

Well,this article, written way back in  Times of India in 2013 sets out some of the reasons for it..at root is the rampant commercialization of the “noble” medical profession where in the guise of a cure basic values are being given the go by, and lives are being risked. The reasons include :

• Increased pressure on health services,with a burgeoning and more aware population, and a creaking public health ‘system’.
• To make more money, doctors are taking multiple engagements beyond their workload capacity. This shows up in other aspects too – more and more cases of gross medical negligence, for example.
• Many doctors are just visiting ‘Consultants’ to many different Hospitals. The Hospitals advertise such specialties. But whether the “Consultant” will be there when an emergency per his specialty ( say a brain injury ) happens, or whether he offers just “ tele-medical” support, if at all , may never be known !
•  No clear protocols : When does a Cardiac Surgeon become a “ Senior” Cardiac Surgeon, or a “ Head” of the Cardiac Surgery Department? Similarly for other specialties.
• The desire of “junior” doctors to “polish” their hands on unsuspecting patients. Since only then can they get more experience and confidence and, in turn, earn more !

And what does the law say about Ghost Surgery ?

The law, unfortunately, does not come much to the help of a hapless patient. To begin with it is obviously not possible to know who did what in an Operation Theater in which the patient’s relatives are not allowed to enter and the patient is unconscious. Medical Records are in full control of the Hospital / Doctors only and can easily be manipulated. And why would any surgeon in the Operation Theater “ spill the beans” ? Maybe he is the junior doctor due whose incompetence an operation went wrong to begin with ? And no doctor, Operation Theater nurse etc, would ever come on record as a witness for fear of not only legal hassles but that of losing their livelihoods forever due bad word of mouth in a tightly knit community.

And without such evidence the patient’s case may be a non-starter to begin with since the onus of proof initially rests on him, and he has no means to prove his case !

And, in India Bolam test holds. Per which, you may expect the ” ordinary standard of skill” as agreed upon by a peer group of a doctor. Don’t expect the best standard, even though you may have paid for that !

Still, in many cases the courts of India have taken resort to S. 106 of the Indian Evidence Act to provide  succor to the hapless patient, though in circumstances different. 

S. 106 says “Burden of proving fact especially within knowledge- when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him’ .

Further. S. 114 of the Evidence Act says : Court may presume existence of certain facts — The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

In many cases of medical negligence these provisions have been used. For instance in G. Balakrishna Pai & Anr. Vs Sree Narayana Medical Mission , II(2008), CPJ 93 (NC) it is observed :

“ onus of proof loses its sharpness, when both parties enter into evidence, and both are required to produce the best evidence available….However, in those cases where virtually every material information is within special knowledge of the concerned doctor, in terms of Section 106 of the Indian Evidence Act then the concerned doctor and the hospital are supposed to prove that due care and caution was taken while giving treatment”.

In  T. Rama Rao Vs vs Vijaya Hospital and Another – I (2008) CPJ 170 (NC) where medical records were not produced to begin with, the Court has held : 

“  When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

And in Gopal Krishnaji Ketkar v Mahomed Ltif & Ors (1968) 3 SCR it is observed : 

“ Even if the burden of proof does not lie on a party the  Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue.”

But in none of the above cases has Ghost Surgery been the issue, so the jury ( or the judgements ) are still out on that one !

Still, in some cases perhaps that issue has been “sensed” by the Honorable Supreme Court as well as NCDRC, though not explicitly addressed.

In Nizam’s Institute Of Medical Sciences vs Prasanth S.Dhananka & Ors ( Civil Appeal no. 4119 of 1999 ), the patient was admitted to the hospital on 19th October, 1990, the operation was performed on 23rd October, 1990 and a tumour was excised. Immediately after surgery, the complainant developed acute paraplegia with a complete loss of control over the lower limbs, and some other related complications, which led to prolonged hospitalization and he was ultimately discharged from the hospital on 19th May, 1991 completely paralyzed with no change in his sensory deficit.

While discussing the case, the Hon’ble NCDRC has observed :

…..(vi) It is also found that the operating surgeon Opposite Party 2 and the neurosurgeon Opposite Party 3 who joined at the end of the surgery left the theatre without meeting the anxious parents waiting outside the operation theatre…….It is difficult to brush aside the feeling that as senior surgeons and faculty members they would have not comprehended the serious outcome of the operation which is perhaps why they left without meeting the parents”

What is left unsaid is that perhaps the Operating Surgeon did not perform the operation to begin with, and was not there in the Operation Theater to begin with. And was not even aware that the operation  had gone wrong ! Else there is NO reason why he could not come out and meet the anxious parent , whatsoever be the outcome of the operation ! Maybe even the complainant did not imagine such a possibility and press upon an investigation of the same.

Hence Indian law , so far, seems completely oblivious to the obvious fact that not all doctors are equal and there is a value for experience. Experience which the patient as a consumer pays for. And so, is entitled to expect at least the expertise he paid for, if not more.

What about US Law for such situations of Ghost Surgery ?

In the United States, “ Ghost Surgery” is well known, and a penal offense, EVEN IF the results do not lead to the patient suffering in any manner  but to his benefit. The Law recognizes completely the patient’s right to his body and even touching the body without consent is battery !

The landmark case for Ghost Surgery was decided way back in 1983 by the US Supreme Court .  In Perna Vs Pirozzi the US Supreme Court has made a detailed elaboration on the issues of medical malpractice and informed consent, with the case here specifically being that the  surgeon who operated on patient Mr.Perna was not Dr. Pirozzi, who was his Treating Doctor

As is clearly set out there :

• However, plaintiffs contend that two other surgeons operated on him without his consent. If that contention is correct, the operating surgeons violated the patient’s right to control his own body. See Right to Choose v. Byrne, 91 N.J. 287, 306 (1982); Schloendorff v. New York Hosp., 211 N.Y. 125, 105 N.E. 92, 93 (1914).

• Any non-consensual touching is a battery. See Prosser, Law of Torts § 9. Even more private than the decision who may touch one’s body is the decision who may cut it open and invade it with hands and instruments. Absent an emergency, patients have the right to determine not only whether surgery is to be performed on them, but who shall perform it. A surgeon who operates without the patient’s consent engages in the unauthorized touching of another and, thus, commits a battery.

• A nonconsensual operation remains a battery even if performed skillfully and to the benefit of the patient. The medical profession itself recognizes that it is unethical to mislead a patient as to the identity of the doctor who performs the operation. American College of Surgeons, Statements on Principles, § I.A. (June 1981). 

• The failure of a surgeon to perform a medical procedure after soliciting a patient’s consent, like the failure to operate on the appropriate part of a patient’s body, is a deviation from standard medical care. It is malpractice whether the right surgeon operates on the wrong part or the wrong surgeon operates on the right part of the patient. In each instance, the surgeon has breached his duty to care for the patient. 
• The absence of damages may render any action deficient, but the doctor who, without the consent of the patient, permits another surgeon to operate violates not only a fundamental tenet of the medical profession, but also a legal obligation.

Thus,as can be seen US case law has been settled and clear since 1983, and supported fully by the American College of Surgeons. Unfortunately , in India the National Medical Council is conspicuously and deafeningly  silent on this aspect ! Although many other right-sounding statements such as  in Code of Medical Ethics Regulation 2002 at Clause 2.4 : “Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. “

While the ghost surgeons render many patients ghosts !

Is the legal / medical fraternity listening ? One can only hope that some people who can bring a change see this article and act appropriately.

If not, sorry, you the patient, an innocent and unaware victim of Ghost Surgery, will always risk becoming a ghost in the process ! Think about it !

What is your experience ? Any thoughts and experiences to share ? Please comment in ! And share this post so that more are aware of what may happen in an Operation Theater !

Here are some more posts on Medical Jurisprudence. Hope of interest/help !

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