Steven E. North and Laurence M. Deutsch
Before our firm became a plaintiff's medical malpractice attorney, we defended doctors in medical malpractice lawsuits. One case involved a patient who, under general anesthesia, sat straight up on the operating table during the course of eye surgery. He lost his eye. The defense lost the case!
Today, when an eye surgery is uncomplicated and common, specifically cataract surgery, the anesthesia is “conscious”; the patient can hear and respond to the surgeon. The anesthesia is administered and monitored by an anesthesiologist or nurse anesthetist, a practice that is covered by Medicare.
Now, according to a recent Medscape.com article, the health insurer Anthem will no longer authorize payment for anesthesia services during cataract operations. It believes the surgeon is capable of administering and monitoring anesthesia in addition to performing the surgery unless there are certain extenuating circumstances.
Some ophthalmologists and anesthesiologists claim that this change jeopardizes patient safety.
Typically caused by protein deposits on the lens of the eye, cataracts make the lens cloudy and inhibit vision. During routine surgery, an incision is made in the surface of the eye with a laser or blade. Another tool is used to break up the protein deposits, pull out the damaged lens, and replace it with a new one.
The anesthesiologist or nurse anesthetist administers medications to help keep the patient relaxed, so he or she will not move during the operation. They also monitor vital signs while the doctor is operating in case the patient has an adverse reaction requiring immediate attention. The ophthalmologist, it would seem, does not have enough hands or eyes to ensure patient safety and prevent loss of an eye or other damage should such a circumstance occur.
While Anthem’s policy seems to create danger for the patient, the insurer is not likely to bear the direct cost of any harm caused during surgery. Legally, the ophthalmologist is subject to suit, not Anthem if something goes awry because neither an anesthesiologist or anesthetist was present during the cataract surgery.
This is because the surgeon is ultimately responsible for the surgery he or she performs. The health insurance policy is a contract that creates conditions for payment to the physician, but the physician ultimately decides whether to perform the operation under those conditions – and the physician remains liable if he or she performs an unsafe surgery. Claiming that the insurance carrier did not authorize payment for an anesthesiologist would not, ultimately, constitute a defense on the part of the physician.
In the face of Anthem’s new policy, some medical groups have shifted the costs of anesthesia to the patient. One California ophthalmology group requires patients to pay out of pocket so an anesthesiologist or anesthetist can be present. Another group is calling on Anthem to rescind its no-anesthesiology coverage policy.
Anthem’s policy is an example of another disappointing cutback sought by an insurance carrier to increase its profit at the expense of the patient. According to the National Eye Institute, more than half of all Americans have cataract surgery before they are 80. For those not covered by Medicare, a relatively simple surgery could become a lot more complex.
We advise anyone considering cataract surgery to find out exactly what kind of personnel in addition to the phsician will be present in the operating room.
Source: Medscape.com, February 23, 2018, “Anthem Calls on Eye Surgeons To Monitor Anesthesia During Cataract Surgery.”
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Specialist in Cases Involving Significant Damages • Listed in Best Lawyers • Listed in Who’s Who • Commentator, Court T.V., Eyewitness News, Talk News T.V. • Contributing Author, New York Law Journal Author of Numerous Publications • Faculty Chairman, Continuing Legal Education Programs • Trial Lawyer and Bar Association Committees
1988, New York and U.S. District Court, Northern, Southern, Eastern and Western Districts of New York. Union College, Schenectady, B.A., magna cum laude, 1984 Phi Beta Kappa; University of Chicago Law School, J.D., 1987
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