Exploring the limits of surgeon disclosure: Where are the boundaries?

Over the last several decades, medical care has undergone a seismic shift toward increasing transparency, disclosure, and an overall focus on patient-centered care. With this change in the patient-physician relationship and the challenge to surgical paternalism by patients and physicians, the traditional boundaries between surgeon and patient also have changed.1 Increased attention to surgeon fatigue and consequent resident work-hour restrictions has spurred a national conversation about the safety of a surgeon performing elective cases after a busy night on call.2 An additional concern raised by patients and the media is the practice of concurrent surgery, in which an attending surgeon has two overlapping procedures going at the same time in different operating rooms (ORs), as well as the role of trainee involvement in surgical cases.3,4

Some patient advocates and physicians demand full disclosure of these formerly “private” aspects of a surgeon’s practice, whereas others defer to the individual surgeon’s judgment with the expectation that he or she is guided by principles of professionalism.5 Given the interest in surgeon disclosure limits among patients, policymakers, and the media, it is clear that if surgeons fail to lead the discussion, third parties will make these decisions for us. In advance of this year’s Resident and Associate Society of the American College of Surgeons (RAS-ACS) Symposium at Clinical Congress 2016, during which this topic will be discussed and debated, this article describes the controversy over the extent of surgeon disclosure and suggests future directions for study.

Preoperative disclosure enhances patient safety and trust

The significant advances in the provision and delivery of care have changed the face of surgery over the last century, allowing our patients to lead healthier, more productive lives. The surgeon-patient relationship also has evolved from one of paternalism to shared decision making. Given this change, it seems logical that the manner in which we obtain surgical consent, which establishes a covenant of trust between us and our patients, would evolve accordingly.

Those of us in training today have never really experienced it, but paternalism was the defining characteristic of the surgeon-patient relationship in the first half of the 20th century. At that time, surgeons routinely made decisions on behalf of their patients without much input from these individuals—something that is clearly out of step with how we practice today.6,7 We now practice in the era of patient-centered care in which patients seek to understand all potential treatment options and demand transparency. It is no longer enough to tell patients that we will take good care of them; rather, patients want solid evidence that their providers will deliver positive outcomes.

Patient satisfaction also is now factored into payment and overall quality decisions, further empowering patients to shape the way that health care is delivered in the U.S.8 As a result, surgeons’ relationships with their patients demand increased transparency.

For example, with the increased attention to physician work hours, many patients now ask their surgeon how much he or she slept before the start of an elective operation. The impact of surgeon sleep deprivation and fatigue on patient care has been at the forefront of discussions regarding patient safety, disclosure, and informed consent since the widely publicized death of Libby Zion in March 1984. Lawyers for the family cited the residents’ sleep deprivation as a factor in Ms. Zion’s death, leading the Accreditation Council for Graduate Medical Education (ACGME) to develop the 80-hour workweek restrictions that took effect in 2003.9,10

Sleep deprivation is known to adversely affect mood and cognition, and its effects are often compared to that of alcohol intoxication with similar impairment of psychomotor function.11 Studies show an increased risk of complications when sleep-deprived surgeons perform procedures, and 80 percent of patients indicate that they would request a different surgeon if they knew their surgeon had been awake for the last 24 hours.12,13

Beyond factors pertaining to the surgeon who is treating them, patients also want information about the other health care professionals who will be participating in the operation. Recent press coverage about concurrent and overlapping surgeries in the Boston Globe has unleashed a wave of controversy and discussion among physicians and the lay public alike.3,4,14-16 The role of trainee surgeons in the OR, particularly in concurrent and overlapping operations, is poorly understood by patients and therefore should be addressed head-on and discussed openly by surgeons rather than skimmed over.17 Disclosing the details of concurrent procedures can lead to an improved relationship between the surgeon and his or her patient, and describing the role of the trainee can often be gratifying to both the trainee and the patient.

Preoperative disclosures and erosion of the physician-patient relationship

Merriam-Webster defines paternalism as “the attitude or actions of a person, organization…that protects people and gives them what they need but does not give them any responsibility or freedom of choice.”18 Surgical training is designed to hone an individual surgeon’s judgment—to know where, when, and how to wield a scalpel, and how to comprehensively care for a patient throughout the full course of their illness. Most patients do not have this specialized knowledge and, therefore, rely on their surgeon to make decisions for them. While patient autonomy is imperative for shared decision making, it is impossible and impractical for patients to understand the nuances of each decision made by their surgeon, thereby requiring some level of paternalism.19 As such, patient-centered care and paternalism, practiced correctly, are not necessarily mutually exclusive.

Deeper than the inherent power differential in the physician-patient relationship that can sometimes intimidate patients and take center stage in the media lies the oath that every physician takes before all else, “primum non nocere,” as well as the obligation to be the patient’s advocate. The recognition of our unyielding moral imperative to do the right thing needs to publicly regain its place in our armamentarium of patient care and advocacy.

Regulating and mandating the types of disclosures described in this article not only challenges surgeons’ professional judgment, but such requirements also may lack supporting evidence, as demonstrated by the recent Flexibility in Duty Hour Requirements of Surgical Trainees (FIRST) Trial.20 Karl Y. Bilimoria, MD, MS, FACS, and colleagues showed that residents who were allowed latitude in determining their own work hours within a general limit of 80 hours per week showed no difference in complications or medical errors and demonstrated greater satisfaction with their training than those trainees who were required to strictly adhere to the rules, such as scrubbing out of index cases or handing off unstable patients when their shift ended. Furthermore, providing a cookie-cutter approach to such disclosures negates interpersonal variability in habits and behaviors. For example, some surgeons function well on two to three hours of sleep, while others require eight hours to feel rested.

If legislators enact mandatory disclosure regarding the amount of sleep a surgeon has had before operating, it opens a Pandora’s Box that our health care system is unready to address. Will the government or insurance companies penalize a surgeon for operating after less than six hours of sleep? How will we know if a surgeon actually slept for the six hours they reported? Will the requirements differ for a trauma surgeon operating on a patient who is brought in as an emergency case in the middle of the night or for general surgeon starting a case starting at 4:00 pm on an elective schedule that started at 7:00 am?

Having an operation at an academic training center comes with the understanding that resident will be involved with one’s care. Should surgeons disclose exactly which trainee will be involved in each case; what portion of the procedure the trainee will perform, such as fascial and/or skin closure or peripancreatic dissection for a Whipple; and the resident’s level of training? Extending the sleep and duty hour argument further, should the trainee also disclose whether he or she is at the beginning of their shift or at the end?

Unquestionably, fatigue affects performance. If surgeons cannot be trusted to recuse themselves from operating on a patient for whom they bear responsibility when they know they are compromised or rely on a colleague to assist during times of fatigue, then why stop there? Why not mandate that surgeons disclose the amount of caffeine or nicotine they have had that morning? Why not force surgeons to disclose distractions of a personal nature they might be experiencing, such as divorce, a sick child, or use of medications for atrial fibrillation, diabetes, or depression? What about regulating disclosure of human immunodeficiency virus or hepatitis status? Where will the line be drawn if surgeons are not leading the discussion?

Instead of forcing surgeons to disclose such information to their patients, leaving it up to the individual surgeon’s discretion recognizes that such highly trained individuals have the ability to focus and conduct their best work while overcoming external stressors. Mandatory disclosure will adversely affect an already burdened emergency care system, as surgeons will have to choose between providing emergency care overnight and scheduling daytime elective surgery. This situation may further limit access to timely surgical care, especially for routine cases. Individual surgical departments should take steps to identify at-risk surgeons and work with them accordingly.17 To force a professional to divulge information that is not known to contribute in any significant way to poor outcomes harpoons the very essence of the surgeon-patient relationship.12, 21-23As stated by the leaders of five professional physician societies:

…government must avoid regulating the content of the individual clinical encounter without a compelling and evidence-based benefit to the patient, a substantial public health justification, or both…. By reducing health care decisions to a series of mandates lawmakers devalue the patient- physician relationship.24

The ACS’ role

To address the challenges regarding surgeon disclosure limits, the American College of Surgeons (ACS) has facilitated extensive discussion on disclosure and patient consent through statements released by the Board of Regents and via articles published in the Bulletin.25-28

Specifically, the ACS has released statements on the disclosure of a variety of issues, ranging from hepatitis to HIV status, which do not need to be disclosed when universal safety precautions are taken, to the presence of health care industry representatives in the OR, which should be disclosed to patients, and the delegation of parts of an operation.25, 29-31

At press time, concurrent surgery was receiving a great deal of scrutiny, and the Senate Finance Committee was investigating the practice.15,32 As a result, the ACS convened a 10-member panel to develop guidelines on this practice.16 The new guidelines, added to the ACS Statements on Principles in April, reiterate that the attending surgeon has primary responsibility for the patient, and although part of the operation may be delegated to “qualified practitioners,” including residents, the “primary attending surgeon’s personal responsibility cannot be delegated” and recommend that the patient be informed of any overlap in operations during which the attending may delegate a part of the operation.25

The College also has published guidelines on the effects of fatigue and methods to mitigate these problems, but the question of disclosure to a patient is not addressed.26 Additionally, duty hour restrictions for trainees, mandated through the ACGME, were meant to alleviate the ill effects of fatigue on trainees and patients alike.9 Although the American Medical Association (AMA) has launched the well-received online training program AMA STEPS Forward—which assists in the identification and prevention of physician burnout and career-based fatigue—the topic of acute, post-call fatigue and associated patient disclosure is not addressed.33

Where should we go from here?

As we continue discussions regarding surgeon disclosure, it will be increasingly important for surgeons to lead the way. If we do not advocate for ourselves and suggest reasonable parameters for surgeon disclosure, it is inevitable that other stakeholders will develop the rules for us. Because federal intervention in the disclosure issue is suboptimal when compared with the development of guidelines issued by surgical societies, the ACS must continue to amplify our influence in Washington, DC. In light of the recent attention and congressional investigation of concurrent surgical practices, our continued support of the ACS Professional Association political action committee (ACSPA-SurgeonsPAC) remains crucial in communicating with congressional leaders and retaining control over disclosure-related recommendations within our own community. Examples of the efficacy of our investment in the SurgeonsPAC can be found in the repeal of the sustainable growth rate via passage of the Medicare Access and CHIP (Children’s Health Insurance Program) Reauthorization Act of 2015.34

Future policy efforts should focus on developing guidelines for surgeon disclosure rather than creating strict policies, with the caveat that guidelines run the risk of temporally evolving into standards of care, without adequate scrutiny into outcomes. A guideline-driven approach would be similar to guidelines directing patient care—general instructions for improving care that should be adapted and considered on a case-by-case basis. For example, guidelines surrounding concurrent surgery might acknowledge that this practice exists on a spectrum and that banning the practice outright could negatively affect patient care by restricting access to common procedures that can be performed relatively easily. In addition, a guideline-driven approach would enhance the physician-patient relationship by opening the door to an honest conversation about the circumstances under which each operation will be performed and who will be performing it.


As the practice of medicine and surgery continues to evolve, it is critical that surgeons maintain the bond between physician and patient—the unwritten agreement that we enter into when we agree to accept a person as a patient, to first do no harm, and to uphold and be worthy of the patient’s trust. Although the specific limits of preoperative surgeon disclosure are debatable, it is clear that surgeons owe patients the utmost honesty. Knowing what you do about what happens inside an OR, what would you want your surgeon to disclose if your family member lay on the gurney? And should your surgeon be forced to disclose that information if not asked? This process may be better facilitated by the development of more formal disclosure guidelines.

If recent history has taught us anything, it is that it is essential for surgeon leaders to remain engaged and in front of this evolving surgeon disclosure discussion so that we many continue to hold a primary decision-making role in patient-centered care. If we do not, government agencies and, eventually, insurance companies, will do it for us. Both the RAS-ACS and the College as a whole are well positioned to realize these goals today and in the future.


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