Will the EP be held liable for malpractice committed by a nurse practitioner (NP) in the department? It is more likely if the state has instituted restrictive scope-of-practice laws governing NPs, according to the authors of an analysis of the effect of these laws on the number of malpractice payments made on behalf of physicians between 1999 and 2012.1
“We were aware of legal reasons that physicians may bear malpractice liability risk, based on state law requirements that they supervise NPs,” says Benjamin McMichael, JD, PhD, the study’s lead author.
However, there was no empirical evidence that physician malpractice risk actually increased or, if so, to what extent. The researchers set out to pinpoint this.
“We hoped to begin important conversations around the propensity of scope-of-practice laws to interact with physicians’ expected malpractice liability risk,” says McMichael, an assistant professor of law at the University of Alabama.
Two key findings: The laws decreased the number of payments made by physicians by as much as 31%, and the largest decrease in physician malpractice rates occurred in states that had enacted fewer malpractice reforms.
“The legal doctrines that support the ability of injured patients to pursue malpractice claims against physicians who are required to supervise NPs have been around for a long time,” McMichael notes.
The researchers found what they expected: Restrictive scope-of-practice laws increase the ability of patients to hold supervising physicians liable. “Overall, findings were consistent with our expectations, and with longstanding legal precedent,” McMichael reports.
As for liability implications for EPs, there are several. “The analysis did not isolate emergency medicine or separate out any other specialty. The data source on which we relied does not provide specialty information,” McMichael says. However, EPs supervise NPs at relatively high rates compared to other specialties. Thus, notes McMichael, “malpractice implications of restrictive scope-of-practice laws are potentially quite salient for EPs.”
An EP in a state with restrictive scope-of-practice laws may expect to face more malpractice claims, with higher payouts, than a similarly situated EP in a state that allows NPs to practice without supervision. Another likely consequence, according to McMichael: “EPs may see higher liability costs.”
- McMichael BJ, Safriet BJ, Buerhaus PI. The extraregulatory effect of nurse practitioner scope-of-practice laws on physician malpractice rates. Med Care Res Rev 2018;75:312-326.