A surgeon’s perspective on the legal risks, regulatory gaps, and clinical realities of ASCs vs. Office-Based Surgery settings.
By Soheila Rostami, MD, FAAO, FAACS (Guest Blog)
Why Surgery Center Liability Matters in Outpatient Care
As a practicing surgeon, I understand the appeal of performing procedures outside of the hospital setting. Office-based surgery (OBS) and Ambulatory Surgical Centers (ASCs) are both considered outpatient settings. This means the surgery is performed without admitting the patient to a hospital.
Studies have shown that patients often experience lower infection rates in these outpatient environments compared to hospital-based surgeries. That said, not every patient or procedure is appropriate for these settings. Some surgeries still require hospital admission for post-operative care, even if only for 24 hours.
OBS and ASCs offer flexibility, convenience, and often a better experience for patients. But these two venues are not interchangeable. The differences in regulation, staffing, and preparedness can have serious consequences for patients and for litigation.
Here’s what I want attorneys to understand when evaluating adverse events that occur during outpatient procedures.
How ASCs and Office-Based Surgery Settings Differ
Ambulatory Surgical Centers (ASCs):
- Dedicated surgical facilities for patients who do not require hospital admission.
- Often freestanding or part of a larger medical complex, with surgery as their sole function.
- Many are certified by the Centers for Medicare & Medicaid Services (CMS), meeting Conditions for Coverage (CfCs).
- Accredited by national organizations such as AAAHC, The Joint Commission, or AAAASF.
- Equipped for a wide range of procedures, including those requiring general anesthesia.
- Staffed by surgical nurses, scrub techs, and anesthesia providers like anesthesiologists or certified registered nurse anesthetists (CRNAs).
- Required to have written emergency protocols and formal hospital transfer agreements.
Office-Based Surgery (OBS):
- Surgeries performed within a physician’s office, not a separate facility.
- Regulated by state law, which varies significantly. Some states like Florida are strict, others like Maryland are lenient.
- Typically limited to low-risk procedures under local or light sedation. General anesthesia may be restricted or require special licensing.
- Accreditation is voluntary in many states, but often pursued for quality assurance.
- Staff may be regular office employees trained for surgical support, but not exclusively surgical staff.
- Emergency preparedness varies widely depending on state requirements and office protocols.
Legal Risks in ASC and Office-Based Surgery Case
Regulatory Oversight and Compliance in ASCs vs. Office-Based Surgery
ASCs are regularly inspected by federal and state agencies. OBS facilities may face little or no oversight depending on the state. Weak oversight increases the risk of patient harm.
Standard of Care in Outpatient Surgery Centers
ASCs must meet formal safety benchmarks and accreditation standards. OBS rooms often lack consistent benchmarks, complicating expert testimony.
Patient Selection and Risk in Surgery Center Cases
ASCs follow structured patient selection guidelines. OBS settings may lack strict criteria, leading to inappropriate procedures on higher-risk patients.
Anesthesia and Emergency Preparedness in Office-Based Surgery
ASCs are equipped and staffed for general anesthesia. OBS rooms are often limited to minimal sedation. If complications arise and the OBS lacks proper staff, equipment, or transfer plans, the liability is significant.
Billing Practices and Fraud Risk in ASCs
ASCs can bill for a facility fee in addition to the professional fee. OBS rooms generally cannot. Improper billing may trigger audits or allegations of fraud.
Stark Law and Referrals in ASC Ownership
ASCs are subject to the Stark Law and Anti-Kickback Statute[1]. OBS rooms, though part of a physician’s practice, must still comply with applicable referral and financial regulations.
What Every Attorney Should Ask a Surgeon Expert
- Confirm the venue. Was the procedure done in an ASC, an OBS room, or another setting?
- Request supporting documentation: accreditation, transfer protocols, anesthesia records, patient selection criteria, and staffing logs.
- Choose the right expert. Hospital-based clinicians may not understand the unique limitations and workflows of office-based practices.
Final Thoughts on Surgery Center Liability
Both ASCs and OBS rooms have a place in modern surgical care. I have seen excellent outcomes in both. But I have also seen how quickly things can unravel when the environment is not right for the procedure or the patient.
Understanding these distinctions is critical for expert review, discovery, and determining whether a case has merit. The risk profile of these settings is not the same.
I own and operate a one-room, AAAHC-accredited OBS facility in Virginia. It is entirely separate from my office. We use general anesthesia and contract with a separate anesthesiology group. This exceeds what the state requires, but I believe it ensures patient safety.
We limit surgeries to procedures under five hours that do not require overnight hospitalization. We maintain pre- and post-op recovery areas and observe patients for 1–2 hours after surgery. Surprise inspections from AAAHC help ensure compliance.
When a patient has significant health risks—such as multiple comorbidities—I refer them to a hospital-based center. Our anesthesiologists also screen patients and may make the same recommendation.
Unfortunately, not all office-based centers are this cautious. Some operate without accreditation and perform long, complex surgeries without adequate oversight. These practices create both patient safety issues and legal exposure.
Attorneys reviewing these cases should focus on whether the facility was appropriate for the procedure performed. When it is not, both clinical and legal consequences follow.
Need an Expert in Outpatient Surgery Liability?
If you’re evaluating a case involving an ASC or Office-Based Surgery, High Rock Experts can help. Start your custom match here.
About the Author
Soheila Rostami, MD, FAAO, FAACS is a dual board-certified oculoplastic and facial cosmetic surgeon with over 25 years of experience. She founded Sanctuary Cosmetic Center and Rostami Oculo Facial Plastic Consultants in McLean, Virginia. Dr. Rostami specializes in eyelid surgery and facelifts, and leads an AAAHC-accredited surgical center serving patients across the Mid-Atlantic and beyond. She also holds multiple national leadership roles in cosmetic surgery education and safety, including Chair of the Oral Board of the American Board of Cosmetic Surgery.
Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect those of High Rock Experts®. This content is for educational and informational purposes only and does not constitute medical or legal advice.