Physician assistants (PAs) are providing much-needed staffing in EDs and are assuming more independence. EMRs provide anyone reviewing the chart with the names of every clinician involved in an ED patient’s care. “For these reasons, PAs are being named more frequently in lawsuits,” says Susan Martin, Esq., executive vice president of litigation management and loss control at AMS Management Group, a Fort Lauderdale, FL-based medical professional liability insurer. Previously, Martin managed litigation and risk management for EmCare and and worked as an ED nurse manager.
“PAs more than likely provide added protection for the physician during volume surges in EDs,” Martin adds. Of 3,277 malpractice claims that occurred in the ED that closed between 2012 and 2016 in CRICO Strategies’ National Comparative Benchmarking System database, only 61 named PAs. “The reality is the legal risks for PAs are no different than for emergency physicians. And research shows that PAs incur a remarkably low rate of malpractice claims paid against them,” says Berit Mansour, director of media relations for the American Academy of PAs.
However, when malpractice allegations arise against PAs, the supervising EP is likely to be named in the lawsuit. Communication between the two providers, or lack thereof, usually is a precipitating factor.
A recent case involved a 45-year-old man who presented to an ED with epigastric and chest pain. He received a GI cocktail, and underwent an ECG and cardiac enzymes study. A PA saw the patient, who improved after a period of observation. “The PA never discussed the patient, or disposition, with the ED physician,” Martin recalls.
The patient died of sudden cardiac arrest the next day. The family sued the PA, the supervising EP, and the hospital. The case was settled against the PA and ED group. These were key areas of focus during the litigation:
- whether it’s acceptable for patients with acute chest or abdominal pain to be seen only by a PA;
- that the ED did not have written protocols for high-risk patients, which require discussion and disposition by the EP;
- whether the bad outcome was due to an individual practitioner who could have approached the EP with concerns, or whether it was due to the ED’s lack of protocols.
After the event, the hospital and ED group put in protocols that chest pain, abdominal pain, and other high-risk complaints must be reviewed by the supervising EP. “Any such protocol should allow the PA to request discussion on any patient in which he or she has concerns,” Martin adds. If the physician signs off on the chart, they are “assumed” to agree with the care, Martin notes. The PA should document that the case was discussed with the EP, and whether the EP agrees with the plan. Any allegations of negligence against a PA require a “reasonable and prudent physician assistant” standard, as opposed to the standard of care an EP would be expected to meet. “However, the PA will need to show that he or she is licensed, trained, and experienced in emergency medicine,” Martin offers.
Julye Johns, JD, an attorney with Atlanta-based Huff, Powell & Bailey, represented a PA who discharged a patient after discussing the case with a physician. The patient developed diabetic ketoacidosis and eventually died. In her deposition, the PA testified she spoke with the physician. “The physician did not recall the discussion, and there was no note of the discussion in the record,” Johns recalls. “Both the PA and the physician were sued as a result.” The trial ended with a defense verdict.
“But this is a warning that an emergency physician who has agreed to supervise a PA may be sued, even when she never saw the patient, never reviewed the record, and does not remember the patient,” Johns says.
Johns says good documentation is:
- Legally protective for the PA. “Spoke with Dr. X. She agreed with plan of discharge, follow-up with primary care provider in 48 hours, and recommendation to return to ED if no improvement. Patient expressed understanding and agreement with plan.”
- Legally protective for the EP. “Consulted by PA X regarding patient. Reviewed the chart and agreed with disposition based on presenting complaints, improvement in condition, test results, and patient’s understanding of discharge instructions to follow-up with primary care provider in 48 hours and recommendation to return to ED if no improvement.”
“In general, a PA should document any communications with a supervising physician regarding a patient’s care, treatment, and discharge, to the extent applicable,” Johns offers. Informal consults often go undocumented. PAs tend to document conversations more often if there is a transfer of care, such as at shift change or due to a change in patient’s acuity. “An emergency physician with whom the communication occurred will, in all likelihood, not make any such documentation,” Johns adds. When a malpractice claim is filed years later, the PA’s thorough documentation of a discussion with the supervising EP is an effective defense — for the PA, that is. It could work against the EP, Johns warns. “This same documentation can implicate a physician who never saw a patient, and who probably will not recall the communication.”