Negligent Supervision Becomes the Case
Patients often assume they saw EP
September 1, 2015
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The fact that an ED patient with neurological complaints was never seen by an EP became a central issue in recent malpractice litigation.
The man initially presented with an unstable fracture of the cervical spine.
“A decision was made by the neurosurgeon to treat this with a special collar, and he was eventually sent home, doing well,” says Stephen H. Mackauf, JD, an attorney at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz in New York City.
A few days later, the patient returned to the ED with new and worsening neurological complaints. A physician’s assistant (PA) saw the patient and discharged him home; no EP ever saw the patient.
“He returned some hours later, much worse. A different PA saw the patient and decided the symptoms were due to a stroke,” Mackauf says. “By the time a physician saw the patient, he was irreparably quadriplegic.”
Mackauf is seeing an uptick in claims involving patients seen by advance practice providers (APPs) instead of EPs.
“We currently have several cases involving PAs and NPs [nurse practitioners] who have committed malpractice,” Mackauf reports. “Of course, the issue becomes, ‘Who else is also liable for their negligence?’”
Negligent Supervision Is Common Allegation
If APPs employed by the hospital are involved in the care of an ED patient in any way and a malpractice suit occurs, they are likely to be named as defendants.
“If nothing else, doing so puts the hospital’s professional liability coverage on the hook,” says Robert J. Milligan, JD, an attorney at Milligan Lawless in Phoenix, AZ.
Reliance on an APP exposes the EP to allegations of negligent supervision, Milligan adds. EPs can help to defend themselves by demonstrating that the APP was fully qualified to treat the patient, and the EP’s past experience with the APP provided the EP with assurance of that fact.
“This would only be possible, of course, if the EP had a history of working with the midlevel, and had confidence in the midlevel’s ability,” Milligan notes.
Claims alleging negligent supervision are stronger if it can be demonstrated the EP knows or should know an APP is not qualified to treat a particular patient, Milligan says.
For example, an EP might be exposed to a negligent supervision claim for allowing an APP with little work experience to have primary responsibility for the care of a patient who presented with a complex medical condition, such as an elderly, obese, hypertensive diabetic in congestive heart failure who presents with worsening shortness of breath.
“Obviously, if the midlevel is employed by the ED practice, the practice is vicariously liable for the midlevel’s conduct,” Milligan explains.
The more unqualified or incompetent the APP is, Mackauf says, the better the case against the EP.
“This, however, misses the point,” he adds. “No matter how well-qualified a non-physician is, patients come to the hospital expecting to be seen by a physician, and in my opinion, they are entitled to that.”
In some EDs, there is no requirement for patients to be seen by an EP; it is sufficient if the APP discusses the case with an EP.
“There is a problem with this practice,” says Mackauf. “That is, the only facts learned by a physician who does not see the patient themselves are the facts told to them by the paraprofessional.”
The EP cannot really know what questions were asked, what answers were given, what examination was done, or what the examination should have revealed.
“The law in many states is that a paraprofessional can only practice if they are supervised by a physician,” Mackauf notes.
The question then becomes what constitutes “supervision.”
“In two recent cases of ours, the paraprofessional in the ED testified that being supervised meant that supervision was ‘available,’” Mackauf says. When asked who decides whether they should consult with an EP about a particular patient, the answer was that the paraprofessional makes that decision.
“The problem with that should be obvious,” Mackauf adds. “The fact a paraprofessional sees no need for physician consultation does not prove that no consultation was needed.”
In Mackauf’s experience, paraprofessionals frequently testify they know just as much as EPs, that they are just as well-trained as EPs, and that they therefore do not need supervision any more than an EP does.
“When asked why the law requires that they be supervised, their only explanation tends to be that such laws are politically driven by physicians,” Mackauf says.
Patients Not Informed
In malpractice claims involving ED patients seen by APPs, Mackauf often sees these fact patterns:
- Patients left the ED without an EP knowing the patient was ever there.
- Patients assumed, incorrectly, they had seen an EP.
Plaintiff’s attorneys can argue the failure to advise a patient of the APP’s status or licensure creates an informed consent claim, Milligan notes.
“I can think of no good reason why midlevels should fail to advise patients of that information when they introduce themselves,” he says.
Mackauf recently handled a malpractice claim against an APP who saw a patient at the office of an OB-GYN.
“No physician saw that patient, no physician was consulted about the patient, and no physician even knew the patient was in the office and had been seen,” Mackauf says.
In fact, the patient left the office thinking the person she saw was an OB-GYN.
“It was only when the patient saw me about a potential medical malpractice case and I looked up the ‘doctor’ that we learned together that the person who committed the malpractice was not even a doctor,” Mackauf notes.
When Mackauf deposed the paraprofessional, he asked if she would be surprised to find out that the patient left the office thinking that she was an OB-GYN.
“Her response, under oath, was, ‘That’s her problem!’” he says. “In the ED setting, exactly the same problems may occur. Patients should not be misled, even by silence.”
Clear Policies Needed
If a bad outcome occurs after an ED patient is seen by an APP, the plaintiff’s attorney may allege the patient’s triage level was inaccurate, and that if the triage level had been accurate, the patient would have been seen by an EP.
“They then allege the APP should have notified the EP, or the EP should have known the patient needed a higher level of service,” says Rade B. Vukmir, MD, JD, FACEP, FACHE, chairman of education and risk management at ECI Healthcare Partners, a Traverse City, MI-based provider of emergency, hospitalist, and acute care practice management services. Vukmir also serves as chief clinical officer of National Guardian Risk Retention Group, the ECI Patient Safety Organization, and as an adjunct professor of emergency medicine at Temple University.
To guard against such allegations, Vukmir advises, EDs need to establish clear policies and procedures for how APPs operate in the department.
“Most importantly, does the EP see all patients, some patients as needed, or is there no patient contact, with the EP only signing off on the medical record?” he asks. He says ED policies should specifically address these operational questions:
- How is the APP supervised?
- What is the interaction with nursing staff?
- What is the interaction with the EP?
- What is the procedure when a patient needs to be transferred or admitted?
- What patients are seen by the EP?
- What are the EPs’ documentation requirements?
If the EP is working in a different area of the ED, Vukmir advises periodically checking with the APP and asking if there is anything the EP can do to help with the patient care needs.
In his own practice, he attempts to greet every patient seen by the APP, and states, “I’m Dr. Vukmir, the emergency physician seeing you in conjunction with our advance practice provider. Can I do anything to help you? Do you have any questions for me?” When appropriate, he does a focused exam.
Vukmir says simply being approachable can reduce legal risks for EPs.
“Make it clear that you work as a team. Establish dialogue with the APP,” he suggests. The EP can say, for example, “I’m here for you. If you have any questions or concerns, feel free to come to me.”
“Visit with the APP periodically during the shift to make sure there are no unmet needs,” Vukmir advises.
SOURCES
- Stephen H. Mackauf, JD, Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, New York, NY. Phone: (212) 943-1090. Fax: (212) 425-7513. E-mail: [email protected].
- Robert J. Milligan, JD, Milligan Lawless, Phoenix, AZ. Phone: (602) 792-3501. Fax: (602) 792-3525. E-mail: [email protected].
- Rade B. Vukmir, MD, JD, FACEP, ECI Health Care Partners, Traverse City, MI. Phone: (800) 253-1795. E-mail: [email protected].
There is an uptick in claims involving patients seen by advance practice providers instead of EPs.
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