Expert Witness in Office Based Surgery Design and Construction
Bernstein & Associates, Architects, through its principal William N. Bernstein, AIA, has provided expert witness services in matters involving the design and construction of office based surgery (OBS) practices and related properties. Attorneys litigating cases that involve construction defects, OBS procedure room design and air-handling problems, infection-control failures, medical gas and emergency power problems, sterile processing and instrument reprocessing workflow defects, recovery area design problems, accreditation-driven design failures (AAAASF, AAAHC, Joint Commission), accessibility violations, fire safety and egress issues under business or ambulatory health care occupancy classifications, water infiltration and building envelope failures, tenant fit-out disputes in medical office buildings, conversion-from-OBS-to-licensed-ASC disputes, phased-construction and occupied-renovation problems, and other claims related to the design and construction of office based surgery practices require an expert witness architect who understands both the applicable building codes and standards and the practical realities of how those requirements are applied in the design, construction, and renovation of real OBS practices.
About Office Based Surgery Design and Construction
Office based surgery design and construction encompasses a range of practice types, including single-specialty OBS practices (plastic and cosmetic surgery, dermatology, oral and maxillofacial surgery, podiatry, ophthalmology, ENT, pain management, gastroenterology/endoscopy, gynecology, and others), multi-specialty OBS practices, OBS practices using moderate sedation, OBS practices using deep sedation or general anesthesia (which face heightened design requirements), and the support spaces that serve them, including procedure rooms, pre-operative areas, recovery areas, sterile processing areas, medical gas storage, and staff and patient support spaces.
The design and construction of office based surgery practices is governed by a complex framework of technical standards, including the applicable building code (for example, in New York City, the New York City Building Code), the International Building Code, ICC A117.1, NFPA 101 Life Safety Code (with the Business or Ambulatory Health Care occupancy distinction often turning on the level of sedation and the number of patients incapable of self-preservation), NFPA 99 Health Care Facilities Code (where applicable), ASHRAE 170 ventilation standards (where applicable), ADA requirements, the FGI Guidelines for Design and Construction of Outpatient Facilities (Office-Based Procedural chapter), AAAASF, AAAHC, and Joint Commission accreditation standards, in New York the OBS accreditation requirements of New York Public Health Law § 230-d, state medical board regulations, and applicable state and local department of health requirements.
Disputes commonly arise over construction defects affecting building envelopes, interior finishes, and clinical spaces; procedure room air-handling, pressurization, humidity, and temperature control problems; failures of medical gas, vacuum, and emergency power systems; sterile processing workflow defects including non-compliant separation of soiled and clean functions; recovery area design problems; accreditation-driven design failures discovered during AAAASF, AAAHC, or Joint Commission surveys; the threshold determination of whether the level of sedation and patient count trigger Ambulatory Health Care occupancy under NFPA 101 (with cascading sprinkler, egress, and construction-type implications); non-compliant accessibility features; inadequate fire-rated assemblies and egress; tenant fit-out and landlord-tenant matters; disputes over conversion of OBS practices to licensed ambulatory surgery centers under Article 28; and disputes arising from phased-construction and occupied-renovation projects. Responsibility for compliance with the applicable standards is shared, in different ways, among the operator, the landlord, the design professional, the contractor, subcontractors, specialty vendors, and the party responsible for ongoing maintenance, and litigation in this area frequently turns on the allocation of responsibility for design decisions, construction means and methods, and post-occupancy maintenance.
Expert Witness Services Related to Office Based Surgery Design and Construction
Expert witness services in office based surgery design and construction matters typically include a careful review of the project documents (drawings, specifications, submittals, RFIs, change orders, permits, certificates of occupancy, ICRA plans, department of health filings and approvals, lease agreements, commissioning reports, and as-built conditions) (along with accreditation survey reports and air balance reports), a site survey to measure and document the conditions at issue, comparison of those conditions against the applicable building codes, life safety codes, outpatient facility guidelines, accreditation standards, accessibility standards, and industry standards of care, review of construction administration records and maintenance histories, and the preparation of clear, well-supported opinions regarding the cause of the defect or failure, the responsibility of the various parties, and the standard of care applicable to the design, construction, and maintenance of office based surgery practices.
An effective office based surgery design and construction expert witness must be able to explain technical requirements — procedure room air-handling and pressurization, infection-control design, sterile processing workflow, medical gas and emergency power, accreditation-driven design requirements (AAAASF/AAAHC/Joint Commission), the Business versus Ambulatory Health Care occupancy threshold under NFPA 101, fire-rated assembly construction, egress geometry, accessibility clearances, and building envelope detailing — in plain language to judges, juries, arbitrators, and mediators, and must have the credentials, written record, and courtroom-ready communication skills to render credible opinions.
Mr. Bernstein is a Yale-trained, NCARB-certified, LEED-accredited, registered architect. He has expertise in architectural design, engineering design, and construction as the founder/owner of an architectural firm, Bernstein & Associates, Architects, (1990-present) and as the founder/owner of a construction project management firm, Empire Projects, Inc. (2003-Present). He has been the expert witness (as of May 2026) on (40) cases involving design and construction (2006-present) across the United States and Internationally.
Mr. Bernstein’s office based surgery design experience includes office based surgery projects across multiple specialties, including pain management OBS practices and other single-specialty and multi-specialty OBS practices in New York. The firm has been retained to evaluate the regulatory and architectural requirements for converting licensed OBS practices into licensed ambulatory surgery centers under Article 28. This depth of hands-on architectural design experience — from program development and code analysis through construction administration and commissioning — provides the technical foundation needed to render credible expert opinions on office based surgery design and construction disputes.
Contact
Please contact Bernstein & Associates, for expert witness services related to the design and construction of office based surgery practices.