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Overlapping surgeries: Compounding regulatory requirements and risks

Sara Kay Wheeler ( is a Partner and Lauren Gennett ( is an Associate in the Atlanta office of King & Spalding.

Overlapping surgeries — when one surgeon is responsible for two procedures that overlap in time — is a practice that has recently gained increased national attention from the media, patients, and government, among others. Many institutions throughout the country elect to permit the practice of overlapping surgeries to varying degrees, with significant differences in policies and processes. Although some view overlapping surgeries as an important vehicle for operating room efficiency, facilitating the ability of specialized surgeons to see more patients and promoting the progressive autonomy of residents in teaching institutions, those critical of the practice often argue that overlapping surgeries pose risks to patients and that informed consent processes do not adequately apprise patients of such practices.

The practice of overlapping surgeries presents a risk continuum with unique risks for different types of institutions. For example, overlapping surgeries present heightened risks for teaching hospitals, because those surgeries are governed by specific Medicare payment requirements. Although non-teaching institutions may currently face less risk from a payment perspective, those organizations must still consider other risks such as those related to informed consent, industry best practices, and reputational harm. Further, institutions that perform a high number of overlapping surgeries may find themselves higher on the risk continuum than organizations where overlapping surgeries are rare.

This article is a follow-up to an article on overlapping surgeries that was published in Compliance Today in May 2016. This article aims to provide an overview of applicable authority for both teaching and non-teaching institutions, as well as explore compliance risks and recent enforcement developments. It will also discuss practical considerations and key questions to consider relevant to both the teaching and non-teaching contexts as you examine these complex issues in light of increased scrutiny and expected enforcement activity.

  • Enhanced regulatory and enforcement attention

  • Significant media and public interest in topic

  • Physicians (including anesthesiologists and residents) as whistleblowers

  • Ability for examination of technical billing practices to snowball into quality of care and informed consent issues

  • Complex and challenging area to assess controls and implement auditing

  • Compliance strategies are not one size fits all

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