Ethical Decision-Making for High-Risk Surgical Patients

By Stacey Kusterbeck

High-risk patients present some unique ethical considerations for surgeons. One issue is that surgeons are under increasing pressure to meet quality metrics, but high-risk patients are more likely to have adverse outcomes. That can result in lower metrics — and, possibly, less reimbursement.

“Value-based medicine rewards physicians for outcomes and not just volume. Thus, poor outcomes have negative financial implications,” says Joseph Bosco, MD, vice chairman for clinical affairs of the NYU Langone Department of Orthopedic Surgery, and professor of orthopedic surgery at the NYU Grossman School of Medicine.

Operating on high-risk patients results in poorer outcomes, even when the best evidence-based pathways and procedures are followed. To address this, outcomes are risk-adjusted based on patients comorbidities. “However, this risk adjustment does not fully compensate for the poorer outcomes associated with high-risk patients,” notes Bosco.

It is not just physicians’ ratings and reimbursement that are affected. Under value-based care, hospitals are also penalized for a surgeon’s poor results. From an ethical standpoint, none of this should affect decision-making in any way. “The primary tenet of medical ethics is the primacy of patient interests. All medical decisions surgeons make ought to be made with the patient’s best interests as the primary guiding principle,” underscores Bosco.

Bosco co-authored a paper providing recommendations for ethical decision-making for orthopaedic patients at high risk for complications.¹ The authors explored the ethics of choosing not to perform elective surgery on high-risk patients. “We sought to provide surgeons with an understanding of the ethical framework around this issue,” says Bosco. Surgeons must be comfortable communicating their decision to high-risk patients. The authors outlined justifiable reasons for not operating, such as:

• when the surgeon believes that the risks of the procedure outweigh the possible benefits;

• when the patient is not capable of understanding the risks and potential benefits of the procedure;

• when the surgeon believes that the patient does not have the ability to comply with postoperative protocols.

“Patients trust surgeons. What they hear when a surgeon tells them that there is a high risk with surgery is, ‘My surgeon would not operate on me if he or she thought that something bad would happen,’” says Bosco. Patients often underestimate risks, or ignore them (such as patients with cardiac disease who continue to smoke).

Thus, patients many times do not fully understand risks, even when the physician gives a clear explanation. This prevents some people from making an informed decision regarding surgery. “Operating on high-risk patients often leads to patient harm. This, combined with patients’ cognitive dissidence regarding risks, frequently places the onus on physicians to be the decision makers regarding elective surgery on high-risk patients,” says Bosco.

Ethicists help to resolve cases where family members are making decisions for patients that the physician believes are not in the patient’s best interest. For example, some family members advocate for a surgical procedure that the patient may not fully understand or want. Ethicists provide the surgeon with the ethical framework within which to make their decision. “Ethicists can also act as a sounding board, to ensure that the physician is making the decision based on ethical principles and not self-interest,” adds Bosco.

Physicians must consider if the patient really understands all the details of the surgery — risks, benefits, and what they are getting themselves into, both in terms of recovery, as well as the perioperative risks, says Amit Jain, MD, MBA, associate professor of orthopaedics and neurosurgery and chief of minimally invasive spine surgery at Johns Hopkins University.

Some patients do not fully understand the implications of surgery. Sometimes patients lack information, or are unable to process the information they do have. “The decision has to be a shared decision-making decision, which is different from a patriarchal decision. The surgeon has the authority and the knowledge base, and the patient doesn’t. It’s really our duty to help patients understand everything in the simplest form and fashion, so that the patient can digest the information and use it for actionable decision-making,” says Jain.

Frank, open conversations based on data are helpful in high-risk cases. For instance, a surgeon might put it this way: “You have a 50% risk of major complications. Do you still want to proceed with this?” Having a family meeting is “absolutely a must” in high-risk cases, says Jain.

Surgeons, with the patient’s permission, engage family, friends or neighbors. “We call them ‘care partners.’ Whoever the patient’s social structure is, we bring them into the loop so they understand before the surgery what they are signing up for,” says Jain.

The joint replacement team has a class for parents and care partners to attend before signing up for surgery, for example.

The point is for the patient and care partners to have realistic expectations. “Medicine is not a perfect science. It is always prudent to set expectations in a reasonable fashion and not overpromise, especially in a high-risk situation where things may not pan out in a positive fashion every single time,” says Jain.

While the surgeon makes a recommendation about whether or not to proceed, it ultimately is the patient’s decision. Surgeons are sometimes uncertain as to whether the patient really comprehends the benefits and risks. Jain finds it helpful to send those patients for a second (or third) opinion.

“This is a way to get some objective information, so the information is not all coming from one surgeon,” says Jain. “If they see another surgeon and get their input, I find that to be a useful exercise. I think of it as an expansion of informed consent.”

At Johns Hopkins, spine surgeons spent several hours every week discussing every case that is going to occur the following week. Colleagues share experiences with similar high-risk cases and may point out something the surgeon missed. In some cases, it causes the surgeon to reconsider going ahead with the surgery. “Surgeons may have a confirmation bias toward things going well. Sometimes you really have to take a step back and ask: ‘Am I doing the right thing for this patient? Is this the right thing to do?’” says Jain.

Sometimes, the group of surgeons feels that it is the wrong decision to proceed with the high-risk case. If so, the surgeon conveys to the patient and family that there is a need to reconsider based on the panel’s input. “There is a sense of doing the right thing, by running it by your colleague. It’s a fabulous exercise, and it’s really a great QA [quality assurance] process that allows us to make good decisions on behalf of our patients,” says Jain.

Sometimes, the surgeon feels it is clear that the risks outweigh the benefits, but a family member still pushes for the patient to have the surgery. “That’s, unfortunately, a common conflict we run into,” says Jain.

Surgeons involve the ethics committee. “We have a really good process,” says Jain. “Having an open, transparent conversation to be sure everyone is on the same page, is helpful.” Usually, a palliative care physician leads the deliberations, taking into account the surgeon’s opinion, and the opinion of other surgeons.

As for quality measures, Jain says these should not be a factor in the surgeon’s decision-making on whether to proceed with surgery for a high-risk patient. “All of us are graded based on some metric, whether a performance metric or a satisfaction/patient experience type of metric. Having said that, our driving force has to be the benefit of the patient. Our first duty, or prima facie duty, is to do no harm and provide benefit to the patent. Those duties really supersede everything else,” says Jain.

Taking on high-risk patients could potentially result in poor metrics, but if the benefits outweigh the risk, then surgery is recommended regardless of those metrics.

“This is a situation I deal with almost on a daily basis, working at an academic medical center and taking care of very sick patients who have been referred from the community,” says Jain. “It’s our job, as the health care team, to figure out how we can do the best possible job for the patient so we look good on those quality metrics, even though it’s a tougher bar to meet.”

REFERENCE

1. Lajam CM, Hutzler LH, Lerner BH, Bosco JA. Ethical considerations of declining surgical intervention: Balancing patient wishes with fiduciary responsibility. J Bone Joint Surg Am 2024; May 9. doi: 10.2106/JBJS.23.00897. [Online ahead of print].