Becker's ASC Review

7 ASC MANAGEMENT Court tosses $7M judgment awarded to patient paralyzed after spine injection at ASC By Angie Stewart T he Colorado Court of Appeals reversed a $7 million judgment against Surgery Center at Lone Tree (Colo.) Oct. 15, saying the ASC should not have been held vicariously liable for a spine surgeon's alleged malpractice. Plaintiff Robbin Smith lost all feeling in her lower extremities aer receiving "a bilateral S1 L1-L2 transforaminal steroid injection using the particulate corticosteroid Kenalog" at Surgery Center at Lone Tree, according to court documents. Ms. Smith was later diagnosed with bilateral lower extremity paraplegia secondary to spinal infarct/ischemia and is perma- nently paralyzed below the waist. She and her husband, Doyle Edward Smith Jr., filed a lawsuit against three defendants: the spine surgeon who performed the epidural, SpineOne Spine & Sport Medical Clinic, and Surgery Center at Lone Tree, where the injection took place. However, only the claims against the ASC proceeded to trial. Claims against the spine surgeon were settled before trial, and claims against Lone Tree-based SpineOne Spine & Sport Med- ical Clinic, which is the surgeon's employer, were dismissed. During trial, the plaintiffs alleged Surgery Center at Lone Tree had an obligation to either prevent its surgeon's off-label use of Kenalog, which they believe contributed to Ms. Smith's paraly- sis, or ensure Ms. Smith had given her informed consent to its off-label use. Aer an eight-day trial, a jury ruled in favor of the Smiths and awarded them $14.9 million in damages. e trial court reduced the amount of the verdict to roughly $7 million. e ASC appealed the jury's ruling, and the Smiths cross-appealed the reduction in damages. Citing Colorado's corporate practice of medicine doctrine, which "prohibits healthcare facilities from controlling a physi- cian's independent professional judgment regarding the prac- tice of medicine, diagnosis or treatment," the Colorado Court of Appeals reversed the trial court's judgment and remanded the case for judgment in favor of Surgery Center at Lone Tree. "We conclude that the trial court should have dismissed the corporate negligence and uninformed consent claims against [Surgery Center at Lone Tree] as a matter of law because, under the corporate practice of medicine doctrine, [Surgery Center at Lone Tree] was not vicariously liable for any mal- practice" by the operating surgeon, nor was the ASC obligated to assume any medical responsibilities the surgeon failed to fulfill, the Colorado Court of Appeals said. e court also dismissed the Smiths' claim for negligence per se, on the grounds that state licensing and federal Medicare regula- tions weren't enacted primarily for public safety reasons. n Wisconsin pain practice pays $1 million in federal kickback settlement By Carly Behm G reenfield, Wis.-based Advanced Pain Management paid $1 million to settle a federal lawsuit alleging kickback payments before filing for receivership, according to an Oct. 5 report from the Milwaukee Business Journal. Companies tied to the Advanced Pain Management chain in Wisconsin filed for receivership Sept. 21, saying they'd lay off 240 employees, the report said. The business also filed a petition for receivership to wind down operations and liquidate its assets. The U.S. Department of Justice alleged Oct. 2 that Advanced Pain Management Holdings gifted shares of incentive stock to non-employee physicians who did procedures at the company's ASCs, the report said. The company allegedly paid non-employ- ee physicians to be medical directors. A spokesperson for Advanced Pain Management told the Milwaukee Business Journal the two cases weren't related. A spokesperson for the U.S. Attorney's Office in Milwaukee told the publication that Advanced Pain Management paid the $1 million before it filed for receivership. Advanced Pain Management didn't immediately respond to a request for comment. n Texas practice performs 2 heart procedures in ASC setting By Carly Behm W aco-based Heart of Texas Surgery Center recently performed two heart procedures in an ASC, accord- ing to administrator Debbie Smith. The two cryoablations were done under the direction of Jason Za- grodzky, MD, Ms. Smith said in a statement to Becker's ASC Review. The minimally invasive surgery was done by inserting a catheter at the groin and inserting a cryoballoon through the left atrium to the pulmonary vein, according to a statement from Heart of Texas Surgery Center. The surgery temporarily stops the blood flow between the atrium and the vein, and a liquid refrigerant is sent into the balloon. The refrigerant then removes heat from the heart tissue, scar- ring it so it can't transmit electrical signals that cause atrial fibril- lation, Ms. Smith said. The announcement comes on the heels of new CMS rules an- nounced in March that give ASCs more flexibility amid the CO- VID-19 pandemic, including one that allows centers to perform surgeries that normally wouldn't be done in an ASC setting. n

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