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Administration/What are some medical-legal issues for being a directory of an ambulatory surgery center?

QUESTION:

The orthopedic surgeons are building a three OR Ambulatory Surgical Center in conjunction with their new office. They want me to be the Medical Director and put my DEAon the line.

The proposed contract is technical and extensive.  The Medical Director shall have extensive responsibility with essentially no authority.  He (me) would provide the DEA number by which all scheduled drugs used in the OR and the PACU will be administered.  I would be responsible for establishing protocols throughout the ASC as well as providing anesthesia services. 

My malpractice will cover all my duties pertaining to anesthetic services, but what about HIPAA compliance, employee substance abuse, harassment issues, disgruntled employees, etc.  My guess is that my malpractice will NOT extend to these other issues. I recognize increased direct and vicarious liability. Is insurance available for me and how much will it cost?

-- From Tod Tolan, M.D.

REPLY:

In general, the position of Medical Director involves increased responsibility and liability above those normally associated with the practice of anesthesia. You should get specific recommendations from a medical practice consultant and/or appropriate legal counsel in your geographic area since state laws and local regulations will probably determine your level of risk. I strongly encourage you to seek legal advice with the contract that you state is technical and extensive.

The position of Medical Director in any freestanding surgical facility should not be without authority. Along with the title you should have a seat on the Medical Executive Board or Governing Board of the facility. You, as Medical Director, should be appropriately empowered to ensure that quality, efficient care is provided. The Medical Director's responsibility and authority should be clearly defined in the medical staff bylaws of the facility. These may not be included in the contract.

Frequently, the Medical Director is compensated for the extra work that is required to fulfill the duties of the position. The stipend, if any, and the professional fees will make up your total compensation package and should be enough to make your extra work worthwhile and to keep you motivated and enthusiastic with your role. It may be important for you to receive a fee from a regulatory standpoint. Then you can demonstrate that you are not providing free services in return for the anesthesia franchise at the facility, a practice that the federal government does not smile upon. A successful facility will be built on mutual respect, trust, and sometimes, friendship among the partners. You may want to request partial ownership of the facility in order to guarantee that all parties have a stake in the success of the organization.

With regards to your concerns about the use of your DEA number, you may want to obtain the advice of a consultant pharmacist. In some cases the Medical Director's DEA number is used for the ordering of pharmaceutical supplies. If you are present on-site full time and actively involved in the processes of the facility then you may be comfortable with this arrangement. In the long run, the facility should definitely obtain its own DEA number for the ordering of supplies since it is not reasonable to expect that each physician would bring his or her own pharmaceuticals.

With regards to administering medications to individual patients, each physician is still responsible for his or her own orders. Each doctor should be required to provide his or her own DEA number as part of the credentialing process for physicians at the facility. You should not be responsible for the prescribing orders of other independent practitioners.

Part of the duties of the Medical Director is to help establish and maintain the policies and procedures for the facility. An administrator or nurse manager will usually help by either authoring new policies or adapting policies from other sources. However the Medical Director will spend a significant amount of time reviewing and modifying what is written.

The facility should be accredited by an approved organization such as the JCAHO or AAAHC. This will help ensure that the facility functions in a manner that meets the commonly accepted standards for outpatient surgical care, including the many and various governmental rules and regulations. There should be a facility administrator who will be responsible for ensuring that federal and state regulatory requirements are met for issues such as employment, accreditation, billing, etc. The facility administrator is usually a separate position from the Medical Director and is responsible to the owners or Board of Directors. The responsibilities for this position are defined by the accrediting agency that the facility chooses to use.

The facility should definitely carry its own insurance policy for both liability and malpractice activities. This should include either a Director's insurance or omissions and errors insurance, to cover administrative liabilities. The functions of the Medical Director should be covered by these administrative policies. You can check with your malpractice carrier to see if you are covered for any of these liabilities, however, it is unlikely that you are unless you have a separate rider to your policy.

-- From Jonathan Pregler, M.D., Los Angeles, CA

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