CODING & REIMBURSEMENT

That which cannot be delegated

By Suzanne Corcoran

Ophthalmologists want and need to be as efficient with their time as possible, but some tasks cannot be delegated. One such task is the evaluation of surgical patients and obtaining their informed consent before cataract surgery.

Q What is the surgeon’s responsibility?

A After an optometrist or another ophthalmologist has made the cataract diagnosis, patients are frequently referred to cataract surgeons for an evaluation and possible surgery. Surgery is not scheduled until the surgeon makes the decision to proceed and provides informed consent. The necessary work-up that follows that decision is also the responsibility of the surgeon and includes ordering preoperative tests, reviewing the surgical options with the patient, determining the most appropriate surgical plan and ordering preoperative medications.

According to the American Academy of Ophthalmology, the ophthalmologist who is to perform the cataract surgery is responsible for these tasks. Malpractice carrier OMIC agrees and specifically says that the surgeon cannot delegate informed consent for a procedure.

Q What are the potential liabilities?

A While any ophthalmologist is trained and qualified to examine and diagnose a patient with cataracts and plan surgery, the surgeon bears a heavy responsibility to personally perform the tasks. The surgeon has a professional liability risk. Clearing a patient for surgery based solely on a review of medical records and test results is not a substitute for the surgeon’s direct assessment and face-to-face meeting with the patient.

In our own consulting practice, we had a client who performed cataract surgery on patients he had not met; in a subsequent legal action he was sued for malpractice and lost the case.

In another case, an ophthalmologist used optometrists to evaluate patients following the first cataract surgery and prepare them for the second operation. Usually, the surgeon performed a double check evaluation just prior to surgery; in this case, he did not. Soon after the procedure, the patient developed endophthalmitis.

The expert witness concluded that no consent existed for the second surgical procedure. The surgeon had not determined the first eye was stable and did not provide the patient an opportunity to ask questions and consent to the second procedure. Again, the patient sued for malpractice and the surgeon lost the case.

Malpractice carries a further presumption that any claim for reimbursement based on inappropriate professional behavior is a false claim and should not be reimbursed. Consequently, an overpayment would exist. In our view, medical necessity for cataract surgery performed without the surgeon’s direct evaluation, medical decision-making and informed consent would be unsubstantiated and ineligible for reimbursement.

Our legal counsel also concurs; a risk-management professional would find it difficult to defend such a case. We urge surgeons to get an opinion from their own professional liability insurer if they opt to have non-surgeon ophthalmologists perform these evaluations on behalf of the surgeon.

Q Are there special issues with optometric evaluations?

A While having a non-surgeon ophthalmologist provide the evaluation in lieu of an exam by the surgeon would not be considered best practices, having an optometrist fill this role can potentially be even more troubling. Consider the scope of license of an optometrist. Neither performing cataract surgery nor making the decision to proceed with cataract surgery is within an optometrist’s scope of practice.