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EDs are increasingly relying on physician assistants (PAs) and nurse practitioners (NPs), but this raises the possibility of more malpractice lawsuits, according to medical and legal experts.
In one case, a 58-year-old male presented to an ED complaining of abdominal pain.
“He was seen primarily by a PA who ordered labs and X-rays and medicated the patient with hydromorphone and ketorolac before the ED physician saw the patient,” says Laura Pimentel, MD, vice president/chief medical officer at Maryland Emergency Medicine Network in Baltimore, MD.
The labs came back with a white blood cell count of 14,000.
“When the ED physician saw the patient, he was much more comfortable. The PA did not communicate the elevated white blood cell count,” Pimentel says. Because the patient felt better, and the physician was told that the workup was negative, the patient was discharged. “Six hours later, the patient presented to another ED and was diagnosed with perforated appendicitis,” Pimentel says.
In another case, a 26-year-old man presented to an ED complaining of a cough and fever.
“He was seen by a PA whose clinical evaluation revealed no concerning findings,” Pimentel says. The patient was discharged before the ED physician had an opportunity to see him. “When the physician later reviewed the chart, he was concerned that the temperature was 102 and the respiratory rate was 26,” Pimentel says. Twelve hours later, the patient was brought by ambulance to another ED in severe respiratory distress; he was diagnosed with multi-lobar pneumonia and intubated in the ED.
Here are common fact patterns in ED claims involving PAs and NPs:
“This is surprisingly common,” Pimentel says. In many EDs, PAs practice nearly independently and only consult with EPs if they believe it is necessary.
“Some states encourage this unsafe practice because the law allows PAs to bill as long as there was a physician available to answer questions,” Pimentel says.
In many EDs, it’s unclear when the PA needs contemporaneous supervision and when the PA can discharge patients, says Joseph Wood, MD, JD, vice chair of the Department of Emergency Medicine at Mayo Clinic Arizona. “I have firsthand knowledge of a claim in which a PA discharged somebody with chest pain and high blood pressure, and the person went on to have a heart attack and died,” he says. Part of the problem was that the supervising EP did see the patient, who had been in an automobile accident, but only to check the patient’s abdomen. “The EP was unaware that the patient had also complained of chest pain,” Wood says.
Failing to define what types of patients PAs can see independently and which require physician consultation is “extremely risk-prone,” Pimentel warns.
A current malpractice case involves an ED patient who was seen only by an NP, with a presentation of severe abdominal pain of sudden onset.
“The patient sees an NP who he thinks is an EP,” says Gary Weiss, JD, the Louisville, KY-based attorney representing the plaintiff. A CT report indicated “a small amount of extraluminal gas,” but the patient was discharged with a prescription for antibiotics. By the time the patient returned to the ED, “peritonitis had set in. The patient had a stormy course, had a colostomy, and multiple surgeries,” Weiss says.
Both the hospital and the ED group employing the NP were named in the resulting lawsuit.
“The basis of the claim against the hospital was that they failed to have a proper protocol, which would have required that a board-certified EP see the patient. Instead, it was left up to the NP’s discretion,” Weiss says.
Expert witnesses testified that the hospital should have had a protocol requiring an EP to see a patient who presented with such symptoms. “When asked how it’s determined if an EP needs to see a patient, the NP responded that it was completely discretionary to the NP,” Weiss says.
Pimentel says EPs are protected by policies and procedures that define the scope of practice of the PA and the supervisory responsibilities of the EPs.
“In my practice, we require a conversation between the PA and the attending prior to patient discharge,” she says. “EPs are required to sign the chart and assume responsibility for the disposition.”
“This is another common practice with which most physicians are not comfortable, and places them at significant risk,” Pimentel says. “Some groups encourage and expect this for billing and regulatory purposes.”
Generally speaking, EPs aren’t fully aware of what’s expected of them when they sign a PA’s chart, Wood says. “If you sign the chart, it’s reasonable to interpret that to mean that you reviewed the chart and agreed with all the care that’s documented.”
Sometimes EPs sign the chart on the next shift, or even days later.
“Those are dangerous practices,” Wood says. “If you are signing the chart at a later point, put the date you signed it. Otherwise, it leaves the impression that you contemporaneously supervised the PA.”
In one malpractice case, a patient with a septic knee was diagnosed with cellulitis and discharged by the PA.
“Litigation included the supervising physician, who signed the chart after the fact,” Pimentel says. The case was not discussed, nor was the patient seen prior to discharge. In another case, a patient with necrotizing fasciitis was discharged with the diagnosis of cellulitis. “The result was an untimely death,” Pimentel says.
EPs often fail to fully appreciate the responsibility they have for the decisions made by PAs — until they find themselves a defendant in a malpractice lawsuit, warns Armand Leone, Jr., MD, JD, MBA, a Glen Rock, NJ-based attorney.
Leone sees change-of-shift handoffs and oversight gaps between PAs and EPs as especially legally risky.
“You’ll have an ED patient who is clearly not an ESI Level 1 or 2, as determined by the ED triage nurse,” he says. The PA then assesses the patient, orders labs, and checks in with the EP.
“The problem is that EPs need to get some confirmatory check on the information they’re given,” he says. The PA may discuss the case with the EP, who does nothing to confirm the information they’re being given. “It’s not enough for the EP to just rely on the PA’s verbal summary on the patient and then sign off.” Critical aspects of the patient evaluation that underlie the diagnosis and treatment plan should be confirmed by the EP, Leone says.
“If you are working together for months and the PA is pretty good, it’s easy to develop a false sense of security,” he says. “But you are the EP, and you have the responsibility.”
If the EP does review a PA’s care at some point during the ED visit and a significant amount of time passes, the EP should go back and conduct a review at discharge, Leone advises. The patient’s condition could change in the interim, resulting in the discharge of an unstable patient.
“There needs to be a last check before such a patient leaves the ED,” Leone says. He recalls one case in which the patient had an unstable condition but was not exhibiting obvious symptoms. The initial information obtained in the ED by various providers was not consistent, went unnoticed, and no further inquiry was made to resolve the discrepancies. As a result, further testing was not done, and a consultation was not called.
The patient returned to the ED about two weeks later with permanent injury.
“The EP missed it because of overreliance on the PA and failing to perform a last check prior to discharge. When the patient returned with neurological injury, it was too late,” Leone says. In such a case, liability extends to both the PA and the EP.
Guidelines ensure that patients with certain complaints, such as shortness of breath, chest pain, abdominal pain, or patients with abnormal vital signs, aren’t discharged unless the EP sees the patient. PAs might be reluctant to be seen as “pestering” a busy EP with multiple critical patients.
“That’s where guidelines can help,” Wood says. “If you can’t discharge somebody unless they run it by the EP, both the PA and the EP know they’re just following the policy.”
Leone says it’s prudent for EPs to see the patient prior to discharge and confirm the history, physical examination, assessment, and plan, then document the same. This is much more defensible than the entry, “Spoke with PA and agree with assessment and plan.”
“That is a typical entry that we see. And to me, that’s a slim reed to stand on,” Leone says.
State laws vary as to whether an EP can serve as an expert witness to judge a PA’s conduct.
“In New Jersey, we need to have a PA opine on the standard of care for the PA, and an EP assess the EP’s conduct, including their oversight of the PA,” Leone says.
The PA’s liability is determined according to the standard of care the midlevel provider is held to, and the EP’s liability is determined by the standard of care the EP is held to.
Midlevel providers in EDs have added “an additional dimension of liability,” Leone says. “Some cases require three separate emergency medicine experts to review the care — an ED nurse, a PA with ED experience, and an EP — before I know what claims, if any, exist.”
This makes the investigation of the case more complicated for plaintiff attorneys, who have to cover all aspects of potential liability and obtain positive and/or negative opinions regarding probable merit as to each defendant. “Defense attorneys, on the other hand, do not have the burden of proving deviations at all,” Leone says. Each defense attorney looks at the case from the perspective of her individual client’s area of practice. “Each defendant only is concerned as to opinions by a matching expert, and has no affirmative duty to produce expert testimony until the plaintiff has,” Leone says.
If the EP is the sole named defendant, but months into the litigation the evidence shows that the PA was also at fault, it could be difficult for the plaintiff attorney to add the PA to the lawsuit. For this reason, Leone addresses all potential claims by provider type prior to filing the lawsuit.
“The EP may have a legitimate defense that the PA messed up or improperly relayed information, and that person is not named in the suit,” Leone says.
Financial Disclosure: The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor); Kay Ball, PhD, RN, CNOR, FAAN (Nurse Planner); Stacey Kusterbeck (Contributing Editor); Shelly Morrow Mark (Executive Editor); Jonathan Springston (Associate Managing Editor); Mary Malone (Author); W. Clay Landa (Author); and Megan Dhillon (Author).