EXECUTIVE SUMMARY

Unhappy patients can cause major headaches for a surgery center. Problems could lead to financial and legal issues.

• In today’s ASC market, the best strategy to reduce post-surgery billing conflicts with patients is to pre-verify patients’ insurance benefits.

• Thorough informed consent can help reduce miscommunication snafus.

• Know when to seek professional help in dealing with a patient’s complaint.


Any surgery center director can recall or imagine several reasons why a patient might be dissatisfied with his or her surgery. It could be the result of unresolved post-surgery pain or an adverse event. It could be because the patient owes more for the surgery than he or she expected. It could be the patient didn’t understand the informed consent or self-care instructions. Whatever the cause, this patient’s unhappiness could lead to financial and legal problems for an ASC.

“An unhappy patient can do anything from simply not paying you to suing you for professional negligence,” says Scott Schoeffel, JD, an attorney with Nossaman LLP in Irvine, CA. “There are all sorts of negative consequences, and that’s what makes it such a touchy problem. You have a limited range of ways to solve that problem.”

Schoeffel suggests the following best practice strategies to eliminate legal and financial risk resulting from dissatisfied patients:

1. When possible, eliminate financial risk. One basic step is to pre-verify patients’ insurance benefits, Schoeffel says.

“When a patient comes in and says, ‘I’ve got XYZ payer and this coverage,’ you want to make sure that what they’re telling you is accurate,” Schoeffel says.

ASCs that fail to verify could end up with unpaid bills. The payer might deny payment based on the procedure or the patients’ coverage limits. Then, it becomes the patient’s responsibility — and the patient might not be able or willing to pay it, he explains. In addition to pre-verifying coverage, ASCs should emphasize advance payments.

“You have less of a collection problem when you collect in advance,” Schoeffel says. “If the patient is uninsured, then ask for payment in full before the procedure. You can use credit card payments. Alternative payments are great.”

ASCs could use secure, online payment portals that deposit funds directly into their bank accounts. PayPal is one example.

“This accelerates the statement process and makes sure you get the bills out on time,” Schoeffel says. “The more payments you can get up front, the more you reduce your financial risk, and you may reduce your legal risk, as well.”

Surgery centers can offer payment plans to cash-strapped patients, but the net result often is that patients will find their own way to pay for the surgery so they don’t have to deal with the payment plan, he adds.

2. Reduce legal risk. One best practice to avoid risk is to provide a fully informed consent before the procedure, Schoeffel says.

“You need to prepare the patient for the possibility of an adverse outcome,” he says. “It’s your professional obligation, and the more professionally you do it, the more patients are prepared for the possibility of something happening that they didn’t expect.”

Communication skills and empathy are important when providing informed consent, Schoeffel notes.

“Walk through informed consent from the patient’s point of view,” he says. “Try to be as empathetic as you can with the patient. You might do 10 of these procedures in one day, but it is the only procedure like it that this patient will have in his lifetime.”

Another best practice is to follow up with patients through patient surveys.

“Let them know you care and value their opinion about their experience,” Schoeffel says. “And together with that, make sure everyone in your staff who has a conversation with the patient or patient’s representative is trained in communication.”

Give employees who speak with patients the talking points of these interactions, making certain there is a uniform style coming from the surgery center. Talking points can help staff know what kind of questions to expect and how to handle those questions.

“The last thing you want is someone who is going to communicate, either through a collection call or an intake call, to a dissatisfied patient, and they’re not able to communicate well,” Schoeffel says.

3. Recognize warning signs. “The most obvious warning sign is when a patient or patient’s caregiver expresses a grievance [about] the experience,” Schoeffel says.

They might complain of pain that has continued for two weeks or that the surgery experience was not what they expected. Another warning sign is when the patient experiences an unexpected adverse event.

“Things didn’t go smoothly,” Schoeffel says. “Maybe the patient came in for sinus surgery, but left with a bad post-op infection and can’t breathe well.”

4. Invest well in training. Clear communication is a good way to prevent patient dissatisfaction.

“Surgery is an important process, and you want to have as much communication with patients as possible about what they can expect and what they have to look forward to,” Schoeffel says.

It’s always important to discuss any potential problem up front.

“The centers that invest time into training personnel have much smaller numbers of dissatisfied patients. They also reduce the financial and legal risks,” Schoeffel says.

ASCs can hire law firms or consultants who assist with training and risk reduction. These consultants will study the surgery center’s whole business practice and offer suggestions and training.

“It’s a long-term investment,” Schoeffel adds.

5. Express sympathy without admitting fault. “There’s an art to not admitting fault,” Schoeffel notes.

Some states, including California, have created “apology laws” that are designed to allow healthcare facilities to express sympathy without running the risk of words turning into legal liabilities. The California evidence code, section 1160, reads, in part, “The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action …” (Learn more about the law at: http://bit.ly/2zdhtLU.)

But the code also reads a “statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.” This means that a letter that expresses sympathy is fine from a legal standpoint. But if the letter inadvertently admits that the ASC caused the problem or adverse event, then such a letter could be used against the surgery center. Whenever a facility plans to send a letter to patients who’ve experienced problems or who expressed dissatisfaction post-surgery, it’s a good idea to show the letter to a risk manager or healthcare lawyer, Schoeffel advises.

6. Know when to ask for help. These are the three main circumstances when an ASC should seek professional assistance:

• First, involve the administrator and risk manager in developing policies and training staff for when internal methods fail. ASCs could hire a law firm or consultant to assist, Schoeffel says.

• Second, involve the ASC’s attorney when someone threatens litigation or it appears litigation is likely. Often, it’s obvious when someone is heading to litigation, Schoeffel notes. “You might get a letter that talks about something having gone wrong and it’s the fault of the facility or physician, or they allude to some sort of professional fault,” he says.

• Third, improve communication. “Review scripts and processes with a lawyer; train employees and give them scripts to start with during phone conversations,” Schoeffel suggests.

Problems often occur because of poor communication between healthcare staff and patients.

For instance, a patient might call the dentist’s office to report that his gums have been bleeding for several days. The person on the phone might say, “Oh, that’s interesting.” This isn’t the type of response that will make a patient feel as though the dentist is as concerned as desired, Schoeffel explains.

The chief communication problem isn’t saying the wrong thing, it’s not saying enough and not showing empathy, Schoeffel says. “You can’t be too empathetic.”

The right answer could be, “I’m so sorry you’re feeling this way. Gosh, that must be miserable,” and similar expressions of empathy, Schoeffel offers.

“Nobody goes in for a medical procedure and is in a good mood,” he says. “They’re stressed; they’re anxious. That’s when you can do your best with your communication and the clarity of your informed consent to make them feel at ease.”

7. Be cautious about discounting bills. ASCs might be tempted to give dissatisfied patients a discount, much as a retail clothing store might give a client a 25% discount after a bad experience. But this often doesn’t work in healthcare, particularly when ASCs receive government payer funding, Schoeffel warns.

“Depending on the type of patient, how much the bill is, and whether there’s a government program, you may not be able to discount the bill,” he explains. “There’s a possible compliance implication, so it’s helpful to get an attorney to look at your scripts, processes, and all of those things.”