For instance, on average, at an ASC the procedure time is 50 minutes, while at a hospital it is 63 minutes. Likewise, on average, postoperative care time at an ASC is 51 minutes; at a hospital, it is 89 minutes.1 This has altered the model of medical professional liability (MPL) claims and the factual and legal issues that must be examined by a defense attorney when an ASC is faced with such a claim.
Given the nature of ASCs and their common business model—to treat patients safely but quickly (thereby conserving resources)—certain theories of MPL predominate. Unfortunately, plaintiffs’ attorneys often seek to take advantage of a profit-for-motive theme, given the financial benefit to physicians afforded by ASCs.
One of the more common claims against an ASC is a failure to recognize an injury prior to the patient’s discharge; in fact, the most common allegation against ASCs surrounds a physician or nurse’s alleged failure to appreciate the signs of a colon perforation. Other common claims involve postoperative bleeding after a tonsillectomy, deep vein thrombosis after a plastic surgery procedure, or electrocautery burns. Most likely, the frequency and severity of claims will continue to rise, given the increasing number of procedures at ASCs overall, as well as the increasingly complicated nature of the procedures performed there.
Vicarious liability
When defending ASCs, defense counsel is also faced with the question of whether the ASC is vicariously liable for the conduct of a surgeon or anesthesiologist. A good first step in evaluating the potential for vicarious liability is to determine whether the doctor is an employee, owner, or independent contractor. However, the potential for vicarious liability often depends entirely on the venue of a plaintiff ’s lawsuit.
For instance, in New York, under Mduba v.
Benedictine Hospital 52 A.D.2d 450 (3rd Dept 1976) and
its progeny, the ASC may be held vicariously liable for a
nonemployee doctor under an apparent or ostensible
agency theory if the surgical center gives the appearance that the physician, or anesthesiologist, was acting
on the surgical center’s behalf. On the other hand, if the claim accrued in Virginia, you may have a very different outcome, given that Virginia does not recognize apparent agency in these situations. See Sanchez v. Medicorp Health System, 618 S.E.2d 33 (2005).
To handle such a claim, defense counsel must also familiarize themselves with the local jurisdictions’ laws relative to joint and several liability. Given that there are oftentimes multiple, separately insured, providers involved in the care, defense counsel must determine the physician’s exposure to joint liability: they may be on the hook for an entire jury award, despite the fact that other providers also contributed to the negligence. On the other hand, if the physician is found to be severally liable, he may only be responsible for his proportional share of liability. This will clearly impact the potential exposure of your client, as well as help determine whether additional healthcare providers should also be named in the lawsuit.
In sum, even though the same factual and legal issues arise in the ASC context as we see in cases involving procedures at acute-care hospitals, early recognition of the issues that are most often found in ASC claims
can lead to a more efficient and effective disposition of the claim.
Reference
1. ASC Communications and Becker’s ASC Review, February 21, 2017.