Memorandum to Members of
The American Society of Cataract and Refractive Surgeons
The American Society of Ophthalmic Administrators




DT: JUNE 29, 1999


ASCRS attorneys Jerald A. Jacobs, Robert M. Portman and Karen L. Cipriani, with the law firm Jenner & Block in Washington, DC, were consulted regarding members' questions about the duty of an ophthalmologist to provide post-operative care to cataract surgery patients. The following is a summary of their analysis:

"Post-operative care arrangements for cataract patients raise both potential fraud and abuse and tort liability risks. As a preliminary matter, we note that billing issues are not the primary concern in this area. As you know, improper billing or coding for post-operative care would fall under the Medicare fraud and abuse laws, the Civil Monetary Penalties Act, or various other state and federal laws. It would be prudent to carefully document all post-operative care, including care that is delegated to a co-managing physician. For billing purposes, however, where care has been delegated to another physician there is no requirement that the physician document anything other than the care that has been provided and the fact that the patient has been transferred. Breach of the duty of care, on the other hand, would be considered a common law tort. Breach of the duty of care could give rise to claims of negligence and possibly abandonment by the surgeon. The difference between negligence and abandonment is one of degree of liability.

"An ophthalmologist performing cataract surgery will have a general duty of care towards the patient when performing surgery and conducting follow-up examinations and procedures. The nature of the ophthalmologist's duty to a patient will depend upon the applicable standard of care. In other words, what would a reasonable physician do under similar circumstances. In terms of post-operative care, this duty will generally entail conducting follow-up visits (i.e. at one day, one week, and one month following surgery) or otherwise communicating with the patient and/or another physician to whom the surgeon may have referred the patient. An ophthalmologist will have different obligations to monitor a post-operative patient if he or she delegates the duty to provide follow-up treatment to another ophthalmologist or optometrist.

"Further, we note that more general principles will also factor into determining what constitutes appropriate post-operative care. For example, providing the patient with a clear and thorough explanation of his or her rights and options and obtaining informed consent will be important for any surgical procedure. Similarly, where post-operative care is delegated in whole or in part to another ophthalmologist or optometrist, the operating ophthalmologist should communicate effectively with the co-managing physician, optometrist and/or staff and ensure that the patient is not billed for duplicative or unnecessary services"


While the legal opinions stated herein are specifically directed towards cataract surgery, the same principals apply towards refractive surgery or, for that matter, any type of surgery.

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