Temps, PAs may be cited in malpractice claims

With the increasing usage of temporary staff and physician assistants (PAs) in the emergency department (ED), it is likely that the healthcare industry will see lawsuits alleging their status was key to alleged malpractice, says Paul C. Kuhnel, JD, an attorney with the law firm of LeClairRyan in Roanoke, VA.

"This certainly represents an increased risk. That is clear. How to address is it not so clear," he says. "At a minimum, the potential increased risk to patient safety and the increased risk of malpractice claims has to be considered in staffing decisions. Healthcare providers have a hard time filling positions sometimes, and I'm not unsympathetic to that difficulty, but this risk has to be factored into how you solve that staffing problem."

Kuhnel cautions that risk managers cannot depend on the "independent contractor" status of temporary employees as a safeguard against liability related to their actions. Even if the temp is technically the employee of an outside agency, and even if that agency provides their insurance coverage, the healthcare provider where they work still can be on the hook if things go wrong.

"The argument of ostensible authority would be allowed, and you would end up with liability for their actions, even if you think have hired them simply as independent contractors," Kuhnel says. "In some jurisdictions you can be held liable for the negligent actions of an independent contractor. Having the person on the payroll of another entity won't necessarily insulate the hospital from liability related to their negligent acts."


• Paul C. Kuhnel, JD, Attorney, LeClairRyan, Roanoke, VA. Telephone: (540) 510-3051. E-mail: Paul.kuhnel@leclairryan.com.