There is a new controversy out of Boston that raises novel legal questions over malpractice. Dr. Tony Tannoury, 54, left an operating room with a patient prepped for ankle surgery at Boston Medical Center to eat in his car. He fell asleep and woke up that evening, long after the operation was completed by a resident. He has been reprimanded by state regulators and fined $5,000. However, some have complained that this is merely a “slap on the wrist” and more serious punishment should have been meted out. It raises an interesting question under torts.
We previously discussed doctors who failed to conduct surgeries on prepped patients, gave testimony during a surgery, or left a patient in the midst of a surgery to cash a check.
Tannoury admits that he fell asleep in his car in 2016 and missed the surgery. The state board found that he “engaged in conduct that undermines the public confidence in the integrity of the medical profession.”
The chief resident conducted the surgery and there is no indication that it was unsuccessful. However, the patient was likely surprised that the doctor was not the one that the patient selected.
There are cases of successful surgeries that were still considered cases of battery for lack of consent. One such case is Mohr v. Williams, 104 N.W. 12 (Minn. 1905), where Williams, an ear specialist, agreed to perform a surgery on Mohr’s right ear. However, in surgery, Williams decided that Mohr’s left ear was in worse shape and decided to switch ears. The operation was successful but the operation was not necessitated as a life threatening situation. In other words, Williams could have waited and secured the consent from Mohr. The court ruled in favor of Mohr and found that the operation constitutes battery since there was no evidence that the condition of the plaintiff’s left ear presented a serious or life threatening situation.
One difference between changing the focus of a surgery and changing a doctor in a surgery is that the latter is often covered in the broad waivers that patients are expected to sign before surgeries. Standard language states that a doctor can delegate surgical tasks to others.
The hospital fully informed the patient and waived all fees so that would appear an effective settlement of all claims.
Notably, the Boston Globe reported that a prior study of the hospital noted that Tannoury occasionally ran two operating rooms at the same time.
Tannoury has directed spine surgery at the Boston University School of Medicine, with which BMC is affiliated, since 2006, according to his LinkedIn page. He specializes in minimally invasive spine surgery and on his practice’s website promises patients not to offer ”any treatment that I would not, or have not, used on my immediate family members and closest friends.”
In 2002, orthopedic surgeon Dr. David Arndt lost his medical license after he walked out on a patient in a complicated spinal surgery to go cash his paycheck at Mount Auburn Hospital in Cambridge. The patient had an open incision. Arndt was later found to have a drug problem.