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Working with NPs, PAs? Policies Can Reduce Risks
Multiple defendants make lucrative targets
Although lawsuits against nurse practitioners (NPs) and physician's assistants (PAs), often referred to as "mid-level providers" or "physician extenders," aren't very common, they typically name the supervising ED physician.
A review of closed claims from 1985 to 2008 involving paraprofessionals showed that the average indemnity payment was $200,387, which was higher than that for general practitioners and emergency medicine doctors, according to the Physician Insurers Association of America's Data Sharing Project, the largest closed claims data base in the world.
"I have been interested in this for some time, but have seen few cases, which in and of itself is interesting," says Hugh F. Hill III, MD, JD, FACEP, FCLM, an assistant professor of emergency medicine at Johns Hopkins University School of Medicine in Baltimore.
However, Hill says that the higher indemnity is not surprising to him. Some factors contributing to this are multiple defendants, higher insurance limits when combining multiple policies on "clear winner" cases, and opportunities for multiple providers to point fingers at each other.
Randy Pilgrim, MD, FACEP, president and chief medical officer of the Schumacher Group in Lafayette, LA, agrees that working with NPs and PAs carries additional risk. In part, this is because whenever there are more providers involved with the care of a patient, there are more opportunities for breakdowns in communication and diffusion of patient care responsibility.
On the other hand, there are benefits derived from having more caregivers available to provide treatment, document the encounter, and discuss care with patients, family, and staff.
"So, as with any patient care activity, there are risks, but there are opportunities as well," says Pilgrim.
ED Physician on the Hook
If an NP or PA does something that the ED physician is completely unaware of, why is he or she held legally responsible? "As much as it seems unfair that the physician wasn't even there when the midlevel made the decision, it seems to me that the whole reason for working under a physician's license is to make the physician responsible for them," says Gabor D. Kelen, MD, director of Johns Hopkins' Department of Emergency Medicine.
The ED attending physician can make the decision on whether they want to see every patient regardless of whether they're required to by the hospital policy, adds Kelen. In some cases, they may choose not to, and instead allow the midlevel practitioner to discharge them. "That is their decision, but the midlevel is working under their supervision, so they are on the hook," says Kelen. "And I don't really see any easy way around that."
An obvious exception is if a midlevel deliberately misrepresented the patient or their condition. "If they outright lied, I think that's a pretty good defense for the physician," says Kelen. "But otherwise, I think if you are supervising, then you are supervising."
Pilgrim notes that common causes of lawsuits are dissatisfied patients and deviations from a standard of care that result in a bad outcome.
"Looking at not only the common causes of lawsuits, but also at why it's difficult to defend a suit once it's filed, the medical record, of course, is usually a centerpiece," says Pilgrim. "In retrospect, it may not be clear that there was good collaboration, communication, and decision-making."
To mitigate common risks of working with NPs and PAs, EDs may benefit from certain policies, procedures, and tools. Pilgrim recommends a few approaches:
Clearly identify what types of care can be delivered independently by an NP or PA, what must be co-managed, and must be managed by a physician only.
"The key is clarity," says Pilgrim. "The second key is to make sure you consistently follow your own policies and procedures."
Implement a program of orientation involving NPs, PAs, physicians, and nursing staff.
"Everyone should know who's on the team and what role they play. With respect to roles and responsibilities, staff should understand what's acceptable, what's a grey zone, and what's not OK," says Pilgrim. "Best practices orient the entire ED nursing and physician staff to prevent variances from safe and high quality practices. If you don't do that well, undesirable variances may not be recognized by others on the team."
For example, a clear orientation may prevent a well-intentioned nurse from inappropriately asking a NP to read a chest X-ray and discharge a patient home, when departmental procedure requires that a physician collaborate in the patient's care.
"Without effective orientation in the ED, patterns of practice may migrate into areas of greater risk that could result in poor care and bad outcomes," says Pilgrim.
Review processes regularly.
Obtain feedback from physicians, PAs and NPs, and nurses. "Find out where questions have arisen, and ask how those issues might be addressed well," says Pilgrim. "Usually, the problem is that regular reviews don't occur, or are not a routine part of departmental meetings, for example." As a result, practices, processes and systems don't have optimal opportunities to improve.
Perform routine, retrospective reviews of the documented medical record.
Look for appropriateness of care, thoroughness of the documentation, and evidence of clarity of communication between providers and to the patient.
"In reviewing records, look for inadvisable patterns of practice, poor coordination of care, and poor documentation habits," says Pilgrim. For example, you might note that a PA is consistently seeing critically ill trauma patients without evidence of consultation or co-management with the supervising physician. Also, it should be clear who performed a procedure, who reviewed lab results, who discussed findings with the patient, and what was discussed with attending physicians and consultants.
The goal is to be clear upfront and continually study how well the team is doing together. "If you're good at that, additional risks are moderated, and the benefits of working with midlevel providers are optimized. The whole team functions better," says Pilgrim. "Patients end up with quality care and good outcomes regularly, which is the best way to mitigate risk in the first place."
Use a medical record system which allows for clarity.
To reduce risks when working with NPs and PAs, Pilgrim says "a key tool is the medical record itself. Whether it's a paper system, an EMR, or even a dictated record, the best systems allow for clarity regarding which provider interacted with the patient, what they did, what communication occurred, and how decisions were made."
In contrast, some medical record systems either cause you to work around them, give few prompts, and provide few opportunities for clarity. For example, the NP may have done all of the history and a large portion of the physical exam, while the physician completed the physical exam and performed a procedure. Both were involved with family discussions, and the physician alone communicated with a consultant.
In this scenario, it may be difficult to understand in retrospect what pieces of patient care were delivered by whom. That can be problematic not only in delivering seamless patient care, but also in defending a lawsuit.
"It may even pit the physician against the NP or PA, in the event of a malpractice claim," says Pilgrim. "A good medical record will not only assist in clarifying those issues retrospectively, but will also encourage appropriate teamwork and thoroughness while the patient is in the ED."
Another scenario involves a patient who was seen and examined, and had labs ordered by the NP. The results came back with a serum glucose of 425 and other electrolyte abnormalities, but the patient was discharged. From the medical record, it wasn't clear that either the NP or the physician addressed the lab results before discharge.
Now, there is a bad outcome and a lawsuit. The physician may say that the NP who ordered the labs should have followed up on them, reviewed the results and informed the physician before a decision to discharge was made. The NP may argue that since the patient was being co-managed, and both providers signed the chart, that the physician had a concurrent and overriding responsibility.
"Good documentation tools really help practitioners record aspects of care and decision-making, but also the interaction between the NP or PA and the physician," says Pilgrim. "Without that, defending a suit is more complicated, even if defensible care and decision making actually happened."
Ed Gaines, JD, CCP, chief compliance officer at Medical Management Professionals in Greensboro, NC, says, there is an "urban myth" in certain physician's minds that if the ED physician does not countersign a physician assistant's chart, that the ED physician has somehow reduced his or her medical legal exposure.
"In many states, non-physician practitioners must practice under supervision of the ED physician. The best evidence of direct supervision is the counter signature of the physician, in order to comply with state law supervision requirements," says Gaines. Commercial health plan reimbursement policies and practices may also impact the question of countersigning the non-physician practitioner's chart.
Also, commercial health plans often do not credential and/or separately recognize the non-physician practitioners for reimbursement. The services have to be billed under the ED physician.
"If the ED physician does not sign the chart, then the non-physician practitioner's services may not be able to be billed to the commercial health plan," says Gaines. "Selecting the medical director's name and National Provider Identifier to bill the non-physician practitioner's services is not a recommended strategy, if the director was not in the department and supervising the non-physician practitioner."
As for strategies to reduce risks for working with NPs and PAs, Hill says there aren't many, "except vigilance." He notes that on reviewing and signing charts, the attending/supervising physician has responsibility, but also opportunity.
"If there is some vulnerability revealed, why not call the patient?" says Hill. "If you only have to do this for one out of 25 or so charts, it's an efficient quality assurance as well as risk management time use."
For more information, contact:
Ed Gaines, JD, CCP, Chief Compliance Officer, Medical Management Professionals, Inc., 3817 Lawndale Drive, Suite E-1, Greensboro, NC 27455. Phone: (877) 271-2506. Fax: (336) 282-6360. E-mail: firstname.lastname@example.org.
Randy Pilgrim, MD, FACEP, President and Chief Medical Officer, Schumacher Group, 200 Corporate Blvd, Suite 201, Lafayette, LA 70508. Phone: (337) 354-1202. E-mail: email@example.com.