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A federal law designed to eliminate surprise medical billing has inadvertently created a massive payday for surgical assistants, allowing them to routinely outearn the primary surgeons they assist by exploiting a loophole in the federal arbitration system.
The Pay Gap: Assistants vs. Surgeons
While a primary surgeon typically spends hours performing highly technical procedures—such as utilizing robotic consoles for prostate removals—surgical assistants stand at the bedside handling tasks like holding back tissue, suctioning fluids, and closing incisions.
Standard health insurance plans traditionally cap an assistant's fee at 16% of the primary surgeon's earnings. However, under the current system, assistants are capitalizing on out-of-network arbitration to bring in up to 25 times what the primary doctor makes.
Dramatic Pay Discrepancies by Case
| Procedure & Location | Primary Surgeon Earnings | Out-of-Network Assistant Earnings |
| Prostate Removal (Dallas, TX) | $1,843 | $50,456 |
| Facial Feminization (New York, NY) | $12,767 | $210,000 |
| Breast Reconstruction (New Jersey) | $2,707 | $111,000 |
The $22,000/Hour Assistant: In the New Jersey breast reconstruction case, insurer UnitedHealth initially offered the assistant $105 based on median in-network rates. After a aggressive 58-page arbitration filing, the assistant was awarded $111,000—averaging over $22,000 per hour for 4.5 hours of work.
How the Loophole Works: The No Surprises Act
Passed with broad bipartisan support in 2020, the No Surprises Act was designed to protect patients from unexpected emergency room bills from out-of-network doctors.
The Mechanism: Instead of billing patients directly, out-of-network providers take health insurance companies to an Independent Dispute Resolution (IDR) arbitration process. Federal contractors review blind offers from both sides and select one as the fair market price.
The Reality: The system has successfully shielded patients from unexpected bills, but medical providers are winning over 85% of arbitration cases, often securing massive payouts for scheduled, routine surgeries rather than true emergencies.
The Loophole: In many instances, an in-network primary surgeon teams up with an out-of-network assistant. Furthermore, practices frequently split a single surgery into multiple separate bills, forcing insurers into dozens of individual arbitration battles.
The Broader Fallout: Higher Premiums and Network Exits
While patients are shielded from these bills upfront, healthcare experts warn that these astronomical payouts are unsustainable and will eventually be passed down to everyday consumers.
Rising Insurance Premiums: Employers and health plans fund these massive awards, driving up the baseline cost of coverage. TeamCare, a major union health plan, has spent $19 million on arbitration cases since 2022 alone.
Incentivizing Doctors to Drop Insurance: Experts worry that the massive profitability of arbitration will encourage more providers to intentionally leave insurance networks altogether.
A System Overwhelmed: Congress initially projected the arbitration system would handle roughly 17,000 claims annually. Instead, over 6 million cases have been filed since 2022, including 1.4 million in the first five months of 2026 alone.
Different Perspectives on the Crisis
The Insurance & Policy View
"This is the road-to-hell-is-paved-with-good-intentions legislation. It’s a very blatant disregard of both the spirit of the law and what the law says."
— Owen Rumelt & Brady Connaughton, Legal Advisors to Union Health Plans
The Surgical Assistant View
Surgical assistant groups argue that insurers frequently refuse to let them into networks and counter-offer insultingly low rates, such as paying a mere $30 for a three-hour surgery. However, even industry insiders admit the current arbitration wins are out of control.
"If I could guarantee $400 per case, I’d be very happy with that... $100,000, $50,000, all these amounts are way out of line and not sustainable."
— Luis Aragon, CEO of Surgikal Assistants
Despite the clear unintended consequences, there is currently little to no appetite on Capitol Hill to reopen and revise the hard-fought legislation.
In response, frustrated health insurance networks are taking matters into their own hands—experimenting with cutting benefits and canceling contracts with hospitals where out-of-network assistant billing is most prevalent. Meanwhile, the federal government recently slashed arbitration filing fees from $115 to $15, a regulatory move expected to trigger an additional 30% surge in upcoming claims.