July 10, 2023

It’s not unheard of. In fact, it’s human nature. Sometimes, we just take our eyes off the ball. Like the napping sentry on night watch or the student who doodles and dawdles in class, there are times when we fail to keep our minds on the task at hand. While occasionally harmless, in the context of anesthesia this failure can lead to significant consequences.

A Case in Point

A surgeon at a large Utah hospital, Michael D. Khoury, M.D., brought a qui tam action under the federal False Claims Act (FCA) last year, alleging that five anesthesiologists who provided services at the same facility had submitted false claims for reimbursement to several federal healthcare programs, including Medicare. The gist of Dr. Khoury’s complaint was that these anesthesiologists used their personal electronic devices (PEDs), including smartphones, tablets and laptop computers, during cases where they were tasked with providing anesthesia, billing full time for these cases.

Some might reasonably respond here that the use of such devices is perfectly normal since many anesthesia providers use them as an extension of their EMR or quality capture system. For example, many of our own clients use a hand-held AIMS application that we developed called Anesthesia Touch. This helps them to document case events and keep track of certain quality measures. However, the whistleblower in this suit alleged the doctors’ devices were being used for activities well beyond the scope of their medical documentation duties.

Dr. Khoury, who performed vascular surgeries at the Utah facility for over a decade, worked closely with the defendants. During his years there, he noticed on a number of occasions that the anesthesiologists in question were not using their personal devices for work but rather for personal tasks while their patients were sedated. The suit cites examples of the defendants using their PEDs to dispute electric bills, shop online, listen to football games (with headphones on), and select music for disc jockey gigs. For all we know, the providers could have been watching viral videos involving dancing dogs on TikTok! Again, they were alleged to have engaged in such practices while they should have been monitoring the patient, according to the plaintiff.

Concerned about patient safety because of these digital distractions, Dr. Khoury raised the issue at a surgical departmental meeting in 2007. According to him, his concerns fell on deaf ears, and he continued to witness the five anesthesiologists use their PEDs in the operating suite. Exasperated, he filed suit in federal court.

The Case Considered

On January 27, 2022, a federal district court in Utah ruled that the surgeon’s False Claims Act case against the named anesthesiologists could proceed to trial. The court refused to dismiss this part of the suit, reasoning that if the allegations were true, the anesthesiologists could be liable under the FCA for billing the government for services that were not reasonable and necessary.  As a point of clarification, the anesthesiologists in question were personally performing, billing with the AA modifier. The District Court Judge, Tena Campbell, stated in her opinion:

By billing the government for anesthesia services that included rampant PED use, the Anesthesiologist Defendants presented legally false claims—claims that were not “reasonable and necessary.”

In his review of the case, one noted healthcare attorney suggested that the court seems to be taking the position that the FCA is implicated where it can be shown that the anesthesia provider was not monitoring the patient, but was on their PED, for a period of time that was ultimately billed. That is, the claims for total times in these cases were deemed to be false because it was not reasonable and necessary to bill for the total time in the cases if the anesthesiologists were on their PEDs for a material portion of the cases.

Interestingly, the Court cited a publication from the American Society of Anesthesiologists (ASA), entitled “Statement on Distractions.” First published in 2015 and amended in December 2020, the Statement specifically notes that “Anesthesiologists, as leaders of the anesthesia care team, should defer nonessential activities such as social media, personal email, and other non-context relevant web searches.” It concludes with several recommendations involving the creation of group or departmental strategies to reduce unnecessary intraoperative distractions, including the establishment of “a risk-stratified policy for acceptable and unacceptable use of PEDs.”

While the qui tam case referenced above has yet to be fully adjudicated, the judge’s opinion on why the case against the defendants should not be dismissed is quite revealing. If it is ultimately determined by the district and appeals courts that billing for anesthesia time during which the provider is using PEDs for personal business or entertainment is tantamount to committing fraud, then that will serve as a major wake-up call for many anesthesia providers. The very fact that a federal district court judge has ruled that this surgeon’s claim has enough merit to go to trial should suggest to our readers the serious nature of this issue. The take home message is don’t use PEDs in the OR for personal purposes. It’s potentially counter to patient care, and you never know who’s watching.

If you have any questions on this topic, please reach out to your account executive.

With best wishes, 

Rita Astani
President—Anesthesia