Celebrity Death Shines Spotlight on Surgical Centers

September 16, 2014
Ike Devji, JD

As freestanding surgical centers continue to proliferate, physicians should keep a close eye on patient care standards, compliance, and asset protection.

The recent passing of Joan Rivers after an extended coma and cardiac arrest is well known. What is only now coming to the public's attention is the fact that she suffered complications while being treated at an Ambulatory Surgical Center (ASC). Regardless of any question of actual malpractice, ASC staff, owners and executives should expect increased scrutiny, criticism, and regulation due to the death of a high-profile public personality.

The suffering or adverse outcome of any patient is of course tragic for all involved including the treating physicians and staff, but when a celebrity dies the mainstream (meaning non-medical) press has a field day of speculation and sensationalism of every aspect of the case, let's face it, it's good TV. Now that this has happened, the laundry list of criticisms about ASCs and their level of safety is being applied wholesale to the entire industry, and this will likely attract the attention of medical malpractice attorneys and their marketing efforts as well.

A recent New York Times article on Joan Rivers' death brought many of these criticisms and questions to light, and while it makes no specific inference of medical malpractice I feel it's pejoratively phrased and makes some strong inferences in the following quotes:

"Their management structure is often explicitly designed to maximize profits for doctors, who are typically the majority owners."

"Yorkville is run by an outside management company, Frontier Healthcare, which is led by a former salesman, a former investment banker, and a gynecologist. Its website lists 10 centers in the New York area, and says they take advantage of 'favorable reimbursement market trends.'"

"Ms. Rivers' death has raised a host of questions: Was an anesthesiologist, who would be trained in sedation and intubation, in the room? Was there enough lifesaving equipment in the outpatient setting? Was there adequate prescreening of Ms. Rivers?"

As ASCs continue to proliferate, their owners, providers, and executives are going to need a close eye on patient care standards, compliance in many areas, risk management, and asset protection.

1. Patient care standards need to go up

Many reports say that compliance and procedures are more lax at ASCs, this is a luxury doctors and patients can no longer afford. All employees should be properly trained, supervised, and credentialed, including both contractor and employee doctors and other providers who, despite not being employees, can create substantial liability for every party in the chain of care. Common ASC malpractice claims include basics we shouldn't have to talk about but still do, like infections (or poor sterilization practices), poor post-surgical care including both early discharge and lack of supervision or instruction. Don't assume that the ASC itself is watching these details if you're a provider or that your providers are watching the details if you own or manage an ASC; this is everyone's problem.

2. Compliance needs to increase everywhere

Compliance in an ASC takes many vital forms, from complying with a credentialing program for providers as outlined above to having well drafted and fully executed informed consent forms, that specify not only treatment details, but who the ASC actually employs and which contractors the patient is agreeing to be part of their surgical team - most notably anesthesiologists and other providers. The typical patient will usually  know who the surgeon is and may even have done some due diligence on her own, but she nearly always (wrongly) assumes that all other professionals involved have been vetted by the doctor, the ASC, or both.

3. Risk management needs to be wider in scope

In this context, risk management takes many forms beyond just having adequate medical malpractice, E&O, and general liability insurance. It requires the implementation of a full suite of specialty liability insurance coverage that I've previously prescribed for every medical practice. Many ASCs overlook this and neglect to carefully and professionally draft manuals, disclosure forms, and indemnity agreements with providers, vendors, and management companies.

If you own an ASC you are almost always responsible both civilly and criminally for any violations of the law, in areas ranging from HIPPA to billing issues - another frequent source of lawsuits against ASCs and their operators is from payers, and this includes passive investor physicians who may hold a an executive or medical title in the entity as part of their ownership. Make sure everyone is specifically and adequately insured for this specific role.