Malpractice claims involving physician assistants (PAs) in the ED have increased in recent years and are continuing to come up, according to legal experts interviewed by ED Legal Letter.
“There are more cases coming in involving PAs now than there were five or 10 years ago, likely due to expanding scope of practice of the PAs,” says Mark Spiro, MD, chief medical officer of the Walnut Creek, CA-based The Mutual Risk Retention Group.
Several states are pushing for more practice autonomy for PAs.1-3 Of an estimated 1 billion ED visits between 2010 and 2017, 5% were seen by a PA and 8.2% by a PA with physician involvement, according to the authors of a recent study.4 Spiro says that in his experience, emergency physicians (EPs) are somewhat concerned about their liability risks regarding working with PAs. “It is a topic that has come up with our medical group many times,” he shares.
Most EPs who voice concerns are worried about finding themselves defendants in lawsuits — when they never saw or even knew about the patient. “It becomes uncomfortable sometimes, depending on the risk tolerance of the EP,” Spiro explains.
PAs may be reluctant to consult with supervising EPs on too many cases for fear of receiving the label of incompetent. Such hesitance raises legal risks for all parties.
Allegations against PAs are similar to those made against EPs: failure to appropriately diagnose and failure to treat, says Julie C. Mayer, JD, a partner in the Virginia Beach office of Hancock, Daniel & Johnson. If something bad happens because a PA failed to consult the supervising EP, generally, the plaintiff sues the EP and the PA. “The hospital would only be involved if it employed either the PA or ED physician,” Mayer says.
Hospital policies will be examined during litigation. Of particular interest is what the policy says regarding which patients the PA needs to consult the EP. From a defense standpoint, says Mayer, “the more general the supervision agreement, the better.” If the policy is more general, it is easier to defend the PA’s actions as reasonable and appropriate under those specific circumstances. “It is helpful to have solid triage systems in place to identify high-risk patients upon arrival,” Mayer offers.
Some hospital policies prohibit PAs from seeing “high-risk” patients. The problem with that is that by the time the lawsuit is filed, the poor outcome already is known to everyone. “It is not always easy to determine high-risk patients vs. those who are not,” Mayer says. “That’s one of the biggest challenges in emergency medicine.”
After the fact, it is easy for a plaintiff to argue the patient was clearly high-risk. After all, the patient suffered a heart attack shortly after leaving the ED. But at the time of the ED visit, the patient’s symptoms and presentation might well have been consistent with a non-life-threatening GI issue.
“There needs to be strong communication between the PAs and EPs to ensure that the EP does see truly high-risk patients,” Mayer suggests. Including these items in the chart can help the defense:
- For PAs: A thorough description of evaluations and findings, and when a supervising EP was consulted. In a recent malpractice claim, the plaintiff alleged the PA failed to diagnose subarachnoid hemorrhage in a patient with severe headache. The PA’s documentation of the physical exam became a focus. “The plaintiff argued that based on that note, the ED physician was required to perform a lumbar puncture,” Mayer says.
- For EPs: Evidence showing the PA’s documentation was reviewed carefully. Often, EPs sign an attestation indicating they agree with the care provided by the PA — without closely reviewing the care. “When they are presented with the chart to review later during litigation, they will see something that they do not 100% agree with,” Mayer observes.
Carefully reviewing the PA’s notes is one way to guard against this. EPs also could consider writing their own summary of the patient’s presentation and their recommendations. “Good communication and a good working relationship among PAs and physicians are absolutely necessary to minimize risks,” Mayer stresses.
PAs work under a supervisory model, meaning the PA works under the direct or indirect supervision of the EP. This means the EP can be held liable for the PA’s negligence and, potentially, for negligently supervising the PA, says John C. West, JD, MHA, DFASHRM, CPHRM, principal at West Consulting Services, a Signal Mountain, TN-based risk management and patient safety consulting firm.
The hospital could be held liable for the PA’s negligence or the EP’s negligent supervision on either a respondeat superior basis (if they are employers) or an ostensible agency basis (if they are independent contractors).
If the EP is named in a suit arising out of the PA’s actions, and the EP remains in the case when it settles and money is paid, the EP will be reported to the National Practitioner Data Bank, West cautions.
In one malpractice case, the PA discharged the plaintiff with a diagnosis of cellulitis and a prescription for antibiotics.5 Twelve hours later, she was brought by ambulance to the ED with acute arterial occlusion and ultimately underwent amputation of both legs below the knee. The patient sued the PA, the EP, and the hospital.
There were three important factors during the litigation: The supervising EP never examined the patient, the PA did not order an arteriogram, and the patient was triaged as non-urgent. Ultimately, a jury returned a $5 million verdict in favor of the plaintiff. “The case does have overtones of requiring heightened scrutiny when care for a potentially high-risk patient is provided by a PA,” West notes.
It is entirely possible that even if the supervising EP had examined the patient, the patient might have been discharged regardless. “I do not fault the PA here. An MD/DO could have made exactly the same mistake,” West offers. “But $5 million later, this was an expensive mistake to make.”
For EDs using PAs, says Spiro, “the challenge is to make the environment safer, both for patients and for providers.”
Some hospital protocols try to do this with a long list of criteria that require the PA to consult with an EP (e.g., when blood pressure or heart rate levels are above certain thresholds).
“That will capture a lot of people. The problem is, in practice, who can remember everything on the list?” Spiro asks.
If a patient records a heart rate of 125 bpm, and the protocol says the EP should see all patients with heart rate faster than 120 bpm, “it increases liability because the protocol wasn’t followed,” Spiro says. Ideally, electronic health records (EHRs) would give “hard stops” if a PA put in certain vital signs or information. For those cases, PAs would have no choice but to consult the EP. “EHRs are not yet sophisticated enough to do that,” Spiro laments.
EPs should not be overly worried about legal risks of working with PAs, according to Spiro. Although it is true the supervising EP is likely to be named in the lawsuit, in the end it is likely to be the PA who is held liable. “It’s usually the person who provides the care that ends up with the liability,” Spiro observes.
In part, it hinges on whether the PA’s policy limits cover the jury verdict or settlement. “Most probably have $1 million limits, and most cases are below that limit. But some aren’t,” Spiro says. The downside is EP defendants will have to report the lawsuit, even if there is no payout on their behalf.
Sometimes, EPs do not want to be involved with patients seen by PAs specifically because they are wary of legal exposure. Some just do not want their names on the chart indicating they served as a case consultant. “I’ve seen that situation, where the PA could use some assistance and the EP is reluctant to be involved. It’s bad for the patient,” Spiro says.
However, those cases are in the minority. For the most part, EPs and PAs maintain good working relationships based on mutual respect. “The focus should be on creating a collegial environment so there is no hesitation for the PA to consult with a supervising EP and no resistance on the EP’s part,” Spiro says.
In a broader sense, PAs reduce risks because patients are seen who otherwise might languish in ED waiting rooms due to overcrowding. “The benefits definitely outweigh the risk. But there is risk,” Spiro says.
- Valentin VL, Najmabadi S, Everett C. Cross-sectional analysis of US scope of practice laws and employed physician assistants. BMJ Open 2021;11:e043972.
- O’Reilly KB. Unprecedented measure on PA oversight fails to reach floor. American Medical Association. March 8, 2021.
- Barton Associates. PA scope of practice laws.
- Howland v. Wadsworth, No. A13A0927 (Ct. App. Ga., 2013).
- Wu F, Darracq MA. Physician assistant utilization in U.S. emergency departments; 2010 to 2017. Am J Emerg Med 2021;42:132-136.