EXECUTIVE SUMMARY

Supervising EPs typically are named in malpractice lawsuits alleging negligent care by a physician assistant. This documentation makes it more likely the EP will be dismissed:

  • The EP used appropriate judgment.
  • The EP took the supervisory role seriously.
  • The EP was not negligent in any way toward the patient.

In medical malpractice cases involving allegations of negligent treatment or misdiagnosis by a physician assistant (PA), supervising EPs typically find themselves named as defendants. This usually is the case, even if the PA is the only one whose care is called into question.

The supervising EP ultimately was dismissed from one recent case, but only after a prolonged discovery period. The PA had consulted with the EP without revealing all relevant components of the history and physical exam.

“The PA obtained the EP’s signature based upon these edited facts, and essentially decided to ‘go rogue’ in the medical decision-making process,” says Nan Gallagher, JD, who defended the EP. Gallagher is director of the healthcare practice at Beinhaker, Gallagher & Goodgold in Millburn, NJ. The patient died because of receiving treatment for the wrong condition. The EP was dismissed from the claim for these reasons:

  • The EP was fully compliant with the governing mandates;
  • There was very complete documentation that the EP had been partially informed by the PA when deciding treatment and ordering prescriptions. Based on this evidence, Gallagher says, “the EP in no way could arguably have been found to have deviated from accepted standards of care.”

In contrast, a judge refused to dismiss another EP from a claim involving care provided by a PA. The plaintiff demonstrated the EP had very limited involvement in the oversight of the PA. The supervising EP was not required to be present during the patient’s exam in the ED or to co-sign anything contained in the chart.

“The PA made independent decisions to prescribe the wrong medication and dosage, which led to the patient’s demise,” Gallagher notes.

The court found the EP’s oversight was insufficient, leaving the claims against the EP in the hands of the jury. “The physician was hit with a $500,000 verdict against him, which will have a rippling effect on his career from an administrative and credentialing standpoint hereafter,” Gallagher says. To be dismissed from a malpractice case, Gallagher notes the EP’s defense attorney must show:

  • that appropriate judgment was exercised at all times under the facts presented;
  • that supervision and co-signature are “hands-on” responsibilities.

Contemporaneous entries by the EP and PA in the progress notes are important supporting pieces of documentation. “I also advise all of my EP clients to insist that the PA document the EP’s involvement and interaction as much as accurately possible in the chart,” Gallagher adds.

Additionally, it’s vital that the EP was not negligent in any way toward the patient. If the plaintiff attorney paints the EP as failing to take the supervisory role seriously, this damages the defense. “EPs must be cognizant of the fact that their training and level of expertise outranks that of any PA,” Gallagher stresses.

Not Second-class Care

Sean P. Byrne, JD, a medical malpractice defense attorney in the Glen Allen, VA, office of Hancock, Daniel, Johnson & Nagle, likes to see the ED chart indicate expressly whether the PA consulted with the supervising EP. “The question ‘Did you consult with the EP or not?’ often gets raised,” he says.

The EP’s signature doesn’t mean he or she offered any input into the patient care. In some cases, the EP wasn’t even aware the patient was in the ED. Many times, says Byrne, “the EP gets sued just because they are on the chart, and can’t remember the case.” It eventually becomes clear the EP did not direct the clinical care in any way. “Over time, the facts play out, and it becomes clear there is no basis for liability,” Byrne adds.

While time-stamping shows the chart was read and reviewed by the EP, sometimes that is not placed into the record until well after the patient has been discharged. “It is helpful if the chart specifically notes when the EP is directly consulted and weighs in on patient care, as opposed to simply signing off on the chart as a matter of routine,” Byrne advises.

When a PA was sued for failing to diagnose a subarachnoid hemorrhage, the supervising EP wasn’t named in the lawsuit. “The PA saw the patient, ordered the testing, and wrote the differential,” Byrne says. All the EP did was sign off on the chart hours later.

“When the role of the EP is merely to supervise and remain available to consult with the PA, but they do not actively participate in the care, they are one step removed and may not be included as a defendant,” Byrne explains.

Plaintiffs often include a “failure to supervise” claim in the initial stages of a lawsuit, when the facts surrounding the EP’s involvement — or lack thereof — are unclear.

“The plaintiff will paint a picture of a factory — not patient-focused, individual care,” Byrne warns. “We have to demonstrate that the patient got good care.” The defense must demonstrate the patient wasn’t receiving second-class care just because he or she saw a PA.

“It is important in these cases to prove that the patient presentation was such that it was well within the scope of practice for the PA to treat the condition,” Byrne says. Likewise, proving that the PA is a well-credentialed, competent, skilled clinician helps reassure the jury that the care was appropriate. Detailed documentation is vital.

“When the chart contains not just drop-down menu clicks, but patient-specific observations, the differential diagnosis, and treatment/disposition plans, the jury will be more inclined to view the care favorably,” Byrne says.

SOURCES

  • Sean P. Byrne, JD, Hancock, Daniel, Johnson & Nagle, Glen Allen, VA. Phone: (804) 237.7409. Email: sbyrne@hdjn.com.
  • Nan Gallagher, JD, Director, Healthcare, Beinhaker, Gallagher & Goodgold, Millburn, NJ. Phone: (908) 364-5655. Fax: (908) 233-4546. Email: nan@beinlaw.com.