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.
My wife went to a hospital to have a colonoscopy. Rather than be seen by a colorectal surgeon named on the invitation letter, she got treated by a junior nurse endoscopist. The nurse had no idea about her prior history and went on to perforate the j-pouch she received some 14 years beforehand. The nurse did not report the adverse event and after 5 days of suffering my wife finally got to A&E, with maybe a day to spare before dying of sepsis and peritonitis. Rather than be treated by experienced colorectal surgeons the hospital had to hand, she got treated by surgical novices. Sure enough, j-pouch repair failed and a colocutaneous fistula formed. Hospital denied existence of fistula for some 5 months, and then due to all the puss in the peritoneal cavity (think sulphuric acid), another, colovaginal fistula formed. My wife struggled to live for about 1 year. She is still half alive and half dead, two and a half years after the negligent murder event. Hospital is still refusing to issue the full colonoscopy report and hiding away 75% of it.
I am in U.K., the negligence solicitors say we are looking at £70k in damages. Sometimes I wish I lived in USA so I could sue for $70M!!!!
I would divide the liability among several players. Who scheduled the surgery? From the comments here, the surgeon was scheduled a surgery much below his experience and skill. Sounds like schedulers, driven by the spread sheet cowboys, were working hard to maximize OR hours,(billing hours) without considering staffing requirements. The surgeon, if he was fatigued, should have refused, but then the OR is empty.
Possibly hooked on opioid pain pills?
did they do a drug / blood test on him?
Also, a spine surgeon should not be doing ankle surgery, though he may have been there just to supervise the resident.
The spine surgeon might have been there just as you say to give advice. They do that in Spain. I woke up from my operation to find seven men and women in my private room. Drs and nurses. I never did find out why they were there, but this was in the strict covid time. Yes they had a good drink and smoke too but we all had a good laugh. But wouldnt say my op was a success. Much rather have had my back surgeon do it. Funny things happened too after the op.
PS here in Spain and the Uk operations, if you didnt have private insurance, you either stuck with yr problem until covid went ot paid up front and with my two operations my savings have almost gone
I wonder if there is any video evidence that the doctor really was on the grounds and in his car and not away doing heaven knows what? My first thought is to believe him as I have great respect for doctors and nurses. If all that is stated is true then there doesn’t seem to be any liability, but if the situation was covered by the waivers then why the rush to have the patient let of the hook for any payments to the hospital or doctors? It doesn’t seem as though hospitals are eager to give free surgeries and yet this is what was done in this case.
Having said the above, It very well may be that the doctor needed and deserved his rest and that all protocols were followed and if so then the doctor did the right thing. Without more evidence I will give the doctor the benefit of the doubt and wish him well.
Whatever happened to Res Ipsa Loquitur?
Apparently, GWU has admonished Professor Turley to avoid the fray – to effectively support the communist takeover by omission. GWU appears to have seen the writing on the wall and has no desire to be “dead right.” Whatever will a Constitutional scholar do without a Constitution – during the total destruction of the Constitution, in the absence of the Constitution, and during the imposition and in the presence of the Communist Manifesto? Will GWU direct Professor Turley to study and transform himself into a Communist Manifesto scholar? Perhaps GWU will “…tear down this [university]” and “fundamentally transform” GWU into KMU, aka Karl Marx University.
General Secretary Barry Soetoro and his Politburo must be smiling broadly, no?
Wait! Who defines “ability” and who defines “needs?”
Not sure doctor should suffer any consequences. No one would know why he missed the surgery unless he told them and without broadcasting that, it could not affect public confidence. Doctors miss surgeries all the time and we never know the reason. Doesn’t make them a public hazard. May not be my favorite doctor from then on, but as in this case, possibly a good thing for patient who had a competent doctor who was not exhausted.
Just goes to show, you can be a doctor and still make not very good decisions (ref to the cashing check).
The linked Boston Globe article states:
The hospital waived all fees connected with the operation, according to medical board records.
The patient, like all surgical patients at teaching hospitals, had a surgical resident perform an ankle surgery, but in this case it was performed by the chief surgical resident, according to the BG article. Chief residents do not need interventions by attending physicians. They are months away from going solo. All patients who consent to treatment at teaching hospitals know trainees assume care of their particulars under the supervision of attending physicians (plural). If one attending physician is unavailable, as it sometimes happens, another attending is on the floor. That is how teachings hospital are run.
In this case the director of spine surgery likely worked 24-48 hours straight prior to the ankle surgery, and fell asleep in his car while eating. The alternative would have been falling asleep during the surgery in the surgical attendings room down the hall from the OR. This really isnt a big deal.
I had same reaction. Patient should be glad the doctor was absent since he was that tired, it would have been risky to have him actually doing the surgery.
Si si
Estovir,
“In this case the director of spine surgery likely worked 24-48 hours straight prior to the ankle surgery, and fell asleep in his car while eating.”
This is completely inappropriate. I have a great deal of sympathy for medical professionals who have to work such absurd hours. Truckers are required to limit their hours because of the dire consequences of driving while tired. Doctors, nurses, and residents can make life-threatening mistakes when tired. Plenty of data out there showing such errors increase at the end of people’s shifts.
Hospitals should do what is right on their own (govern themselves) and stop overworking people or they are at risk of the government regulating them. Do they really want the government to get involved?
Medical mistakes kill over 250,000 people every year. But make sure 4 year old Susie wears her mask 8 hours a day and trust the doctor.
Risk analysis is a lost talent.
or, he was wasted
This a strange one for me. The fact that the doctor in question falls asleep for hours says a much larger problem may have been avoided. I wonder why the resident felt it ok that it was fine to cut with a missing surgeon. I wonder if that is protocol too minus a life threatening condition.
As for the punishment, it does need to be meted out and maybe $5000 is not enough, or maybe it is plenty. I wonder if the board has standards for this like truck driver fines. It is not really the money, it is about corrective action so it does not happen again.
I look at the statement about undermining the public confidence and that of course important. Yet the fact he fell asleep could certainly lead to a greater loss of public confidence. It sounds like a slap on the wrist statement because any action or lack thereof could lead to the loss of public confidence.
The Quiet Man,
While I agree with some of what you say, I have a different perspective on this:
“Yet the fact he fell asleep could certainly lead to a greater loss of public confidence.”
The fact that he was overworked and tired from absurd hospital policies is closer to concerns of confidence I know I have.
“Dr. Tony Tannoury, 54, left an operating room with a patient prepped for ankle surgery . . .”
What if a surgeon were, say, senile, abandoned hundreds of patients, botched numerous procedures, robbed patients blind while they were under, sold poisons as cures and failures as successes?
Is that “surgeon” guilty of malpractice?
Only if he violates the standard of care.
I think he had a stroke.
Not sure I would a doctor who fell asleep that easily doing my surgery. Patient may have lucked out. Still, some sort of discipline may be appropriate, as well as increased malpractice rates
Apart from the interesting legal questions, if the doctor falls asleep in his car and sleeps apparently for hours, the patient is fortunate that another doctor performed the surgery.