I have taught medical malpractice as part of my torts course for decades but I have never seen anything quite like this. Dr. Scott Green is accused of appearing in Sacramento Superior Court for a trial of a traffic violation during a surgery. While Green was willing to continue, the court was not. He will now have to appear before the Medical Board of California, presumably not in scrubs and in mid surgery. While we have discussed past cases like a doctor hip-hopping on videos around patients, this is the first doctor appearing as a surgeon and a litigant at the same time.
According to the Sacramento Bee, Dr. Green appeared dressed in surgical scrubs in a surgery room with a patient undergoing a procedure.
The court clerk is heard saying “Hello, Mr. Green? Hi. Are you available for trial? . . . It kind of looks like you’re in an operating room right now?”
“I am, sir,” Green replied. “Yes, I’m in an operating room right now. Yes, I’m available for trial. Go right ahead.”
The clerk helpfully reminded Green that he and the trial were being livestreamed but it did not seem to faze Green who said that he understood but kept on working with his head down.
Court Commissioner Gary Link then entered the chamber and balked at the idea of Green dividing his time and attention between a trial and a surgery. Green however pushed for the court to proceed: “I have another surgeon right here who’s doing the surgery with me, so I can stand here and allow them to do the surgery also.”
The judge refused and Green appears to start to apologize: “Sometimes, surgery doesn’t always go as…”
Link was supportive and said “It happens. We want to keep people healthy, we want to keep them alive. That’s important,”
It is not clear if Green was trying to say that the surgery went longer than anticipated. However, the answer is not to proceed with a trial. Green could have had a staff member go on to ask for a delay or he could have foreseen that he had scheduled a surgery in potential conflict with the trial. If, for example, there was an unpredictable complication in a surgery, it would have not only warranted more time but the continued attention of Green. If Green was no longer needed in the surgery, he could have left. His continued work in the surgery indicated that he was in fact needed. Indeed, many procedures dictate two surgeons.
One of the nine core principles of medial ethics is “A physician shall, while caring for a patient, regard responsibility to the patient as paramount.”
There is also the duty to put a patient’s interest before your own as a physician:
The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest or obligations to others, to use sound medical judgment on patients’ behalf, and to advocate for their patients’ welfare.
The problem for Dr. Green is multifold. First, the most serious consequence is if there were any complications or problems with the patient. Second, there is the potential violation of the patient’s privacy (though the patient remains off camera). Third, there is the obvious medical practice and ethics issue. On the ethical issues, it is not just the Board but the hospital that will have to review the matter. I would be surprised if Green would keep his privileges at hospitals active during the review. While some of the circumstances of the surgery must be determined (like an unforeseeable delay), the key facts are open and obvious. He elected to appear in trial while doing surgery. Most hospitals would be leery of the potential liability in continuing privileges for a physician with such a lack of judgment. If he were later involved in another malpractice case (particularly involving a lack of focus or attention), this case would be raised in court.
The other question is the responsibility of the second surgeon. There may also be a duty of that surgeon to object to a colleague who wants to appeal for trial while assisting in a surgery. Such reporting is expressly mandated by the American Medical Association.
What is particularly striking is that any legal action will be based on evidence derived from an actual court. Moreover, that record will show a court intervening in real time to stop a presumptively unethical act. Courts have long asserted the authority to determine what is reasonable in terms of medical practice (and other professional fields) even when such findings contradict long held customs. As noted in The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932) “Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.” Here a court was not dealing with any long established practice or custom of multitasking surgeons. It was however acting to stop a practice that was facially improper involving both an appearance as a surgeon and a litigant.