The Dangers of Concurrent Surgery: When Surgeons Run Two ORs

The Practice of Overlapping Surgery

It is important to distinguish between overlapping surgery and concurrent surgery:

Overlapping surgery: The surgeon performs the critical portions of one surgery, then moves to a second surgery while non-critical portions (e.g., closing the incision) are completed by another qualified surgeon or resident. The surgeon is present for all critical portions of both procedures. This practice is generally permitted under Medicare and hospital guidelines.

Concurrent surgery: The surgeon is simultaneously involved in the critical portions of two or more surgeries — moving back and forth between operating rooms while critical work is ongoing in both. The surgeon is not present for all critical portions of both procedures. This practice is prohibited by Medicare rules and most hospital policies — but it still occurs.

The critical distinction is what constitutes a "critical portion" of a procedure. Hospitals and surgeons sometimes define critical portions narrowly — leaving large portions of the procedure to be performed by residents without the attending surgeon's direct supervision. This allows concurrent or overlapping surgery to continue while technically complying with policy.

For patients, the concern is clear: when your surgeon is not present for critical portions of your surgery, the risk of errors increases — and the person performing the critical portions may be a resident who is still learning.

Risks to Patients

Concurrent and overlapping surgery pose several risks to patients:

• Divided attention: A surgeon who is thinking about or monitoring two surgeries simultaneously cannot give full attention to either. Surgical errors often occur in moments of inattention.
• Absence during critical moments: If a complication arises (e.g., bleeding, anatomical variation, unexpected pathology) while the attending surgeon is in another OR, the resident or fellow may not have the experience to manage it.
• Inadequate supervision of trainees: Residents and fellows are still learning. While supervised training is essential, the level of supervision must be adequate. When the attending surgeon is absent, supervision is inadequate.
• Delayed response to emergencies: If an emergency occurs in one OR, the surgeon in another OR may not be able to respond immediately. Minutes matter in surgical emergencies.
• Communication failures: When the surgeon is moving between ORs, communication about patient status, surgical findings, and plans can be fragmented.
• Increased complication rates: Studies have suggested that overlapping and concurrent surgery may be associated with increased complication rates for certain procedures, though the evidence is mixed and the practice remains controversial.

When Concurrent Surgery Becomes Malpractice

Concurrent surgery becomes medical malpractice when the surgeon's absence or divided attention causes or contributes to a surgical error. This can occur when:

• The surgeon was absent during a critical portion of the procedure: The standard of care requires the attending surgeon to be present for all critical portions. If the surgeon was in another OR during a critical portion and an error occurred, the absence may constitute negligence.
• A complication arose while the surgeon was absent: If an emergency (e.g., bleeding, injury to a structure) occurred while the attending surgeon was in another OR, and the delay in the surgeon's return contributed to the harm, this may constitute negligence.
• The resident or fellow was not qualified: The person performing the critical portion was not adequately trained or supervised, and their inexperience caused an error.
• The patient was not informed: The patient was not told that the surgeon would be performing overlapping or concurrent surgeries, or that a resident would be performing portions of the procedure. This may constitute lack of informed consent.
• Hospital policy was violated: The hospital had a policy prohibiting concurrent surgery, and the surgeon violated it.
• Medicare rules were violated: Medicare prohibits concurrent surgery (simultaneous involvement in critical portions of two surgeries). Violation of these rules may be evidence of negligence.

Informed Consent and Transparency

A critical issue in concurrent surgery cases is informed consent. Patients have a right to know who will be performing their surgery and whether the surgeon will be simultaneously involved in another procedure.

The standard of care for informed consent in concurrent surgery includes: - Disclosure of overlapping/concurrent surgeries: The patient should be told if the surgeon plans to perform overlapping procedures. - Disclosure of resident involvement: The patient should be told what portions of the procedure will be performed by residents or fellows, and the level of supervision that will be provided. - Right to refuse: The patient should have the opportunity to decline overlapping surgery and request that the surgeon be present for the entire procedure.

In many cases, patients are not informed that concurrent or overlapping surgery will occur. They sign a general consent form that does not mention the practice. If a complication occurs and the patient later learns that the surgeon was in another OR during a critical portion, this may constitute lack of informed consent — a separate cause of action under New York Public Health Law § 2805-d.

New York Hospital Policies and Regulations

In New York, concurrent surgery is subject to hospital policies, Medicare conditions of participation, and professional standards:

Medicare rules: The Centers for Medicare and Medicaid Services (CMS) prohibits surgeons from being involved in the critical portions of two simultaneous surgeries. Hospitals that receive Medicare funding must comply with this rule.

Hospital policies: Each hospital sets its own policy on overlapping and concurrent surgery. Major NYC teaching hospitals (e.g., NewYork-Presbyterian, NYU Langone, Mount Sinai, Montefiore) have policies that generally permit overlapping surgery (with restrictions) but prohibit concurrent surgery.

American College of Surgeons (ACS) guidelines: The ACS has published statements supporting overlapping surgery with appropriate informed consent and supervision, but discouraging concurrent surgery.

New York State Department of Health: The DOH oversees hospital quality and safety. Hospitals are required to report adverse events, and the DOH can investigate practices that put patients at risk.

Despite these policies and regulations, concurrent surgery still occurs — sometimes due to surgeons violating policy, sometimes due to vague definitions of "critical portions," and sometimes due to institutional culture that prioritizes efficiency over patient safety.

Real-World Consequences

The consequences of concurrent surgery can be devastating. Consider this composite scenario (based on common patterns in concurrent surgery cases):

A patient undergoes a complex spine surgery at a major NYC teaching hospital. The attending surgeon is simultaneously performing a procedure in an adjacent OR. During a critical portion of the spine surgery — while the attending is in the other OR — a resident encounters unexpected bleeding. The resident attempts to control the bleeding but lacks the experience to do so effectively. By the time the attending surgeon returns, significant blood loss has occurred, and the patient suffers complications including nerve damage from the prolonged bleeding and compression.

In this scenario, the patient's injury may have been prevented if the attending surgeon had been present throughout the critical portions of the procedure. The concurrent scheduling — and the surgeon's absence during a critical moment — may constitute negligence.

While this is a composite scenario, it reflects the real risks that concurrent surgery poses to patients.

How We Investigate Concurrent Surgery Cases

At MDLaw Firm, we investigate concurrent surgery cases with thoroughness:

1. Obtain all OR records: Including OR schedules, anesthesia records, nursing notes, surgical reports, and circulating nurse logs. These records establish when the surgeon was present and when they were absent.

2. Obtain hospital policies: We request the hospital's policy on concurrent and overlapping surgery to determine whether it was followed.

3. Review the surgical timeline: We reconstruct the timeline of the surgery — when the surgeon entered and left the OR, what was happening during their absence, and who was performing the critical portions.

4. Engage expert surgeons: We consult with board-certified surgeons to evaluate whether the surgeon's absence during critical portions constituted a breach of the standard of care, and whether the breach caused the patient's injury.

5. Evaluate informed consent: We review the consent forms and preoperative discussions to determine whether the patient was informed about concurrent surgery and resident involvement.

6. Pursue the claim: If our investigation establishes negligence, we file the malpractice claim, conduct discovery, take depositions, and prepare for trial.

We handle concurrent surgery cases on a contingency fee basis — you pay nothing unless we secure compensation.

Frequently Asked Questions

The value of a medical malpractice case in New York depends on several factors, including the severity of the injury, the strength of liability evidence, and the economic and non-economic damages involved. New York is one of the few states with no caps on medical malpractice damages, meaning there is no artificial limit on what you can recover. Below are typical settlement ranges based on injury severity.