EPs Being Held Liable for Mistakes Made by NPs, PAs

“All right, so technically I’m responsible ... ” or “Well, OK, I may be legally responsible, but ... ” These comments are common responses by emergency physicians (EPs) named in lawsuits involving mistakes made by physician assistants (PAs) or nurse practitioners (NPs) they’re supervising, says David W. Spicer, JD, a health care attorney in Palm Beach Gardens, FL.

“My response is well, technically and legally, if they screw up, you are on the hook,” says Spicer. “There is no way around that.”

NPs and PAs are being used more often in EDs, and time-strapped EPs need to rely on them working somewhat independently, acknowledges Spicer, but “a lot of EPs don’t understand that they are ultimately responsible for what they do. The fact that PAs and NPs are allowed to write prescriptions and to do certain orders blurs the line between the EP and the physician extender.”

Spicer was involved in a lawsuit alleging that a PA gave incorrect discharge instructions to a patient, resulting in a 21-day hospitalization, which also named the EP.

“This occurred primarily because of a lack of communication between the EP and the PA,” says Spicer. “The EP was saying, ‘I have a licensed PA and she should know how to do this,’ but she was coming right out of training without a lot of hands-on experience in the ED.”

The fact that most PAs and NPs working in EDs have only short-term working relationships with EPs poses additional legal risks for the EP, says Spicer. “If the EP has a long-term working relationship with a PA or NP, that’s great. But you are seeing less and less of that because EDs are being staffed by big companies, and they are hiring and firing people and moving them around,” he explains. “The continuity between the EP and the PA generally isn’t long term, and that’s where the big problem comes in.”

While it’s safe to assume a board-certified EP has a certain level of competence, the same isn’t true for PAs and NPs, says Spicer. “The busier the EPs get, the more they are going to be relying on these folks, and the more potential there is for miscommunication,” he adds.

PAs filling out electronic medical records, for instance, are less likely to document the medical decision-making process in the comments section. “The subtleties that a doctor might pick up on — that there is a somewhat suspicious family history of heart disease, for example — will get lost on a PA,” Spicer says.

EPs should never allow a PA to interpret test results, advises Spicer. Spicer was involved in a claim that named an EP, involving a patient who dislocated her knee, whose CT angiogram showing complete occlusion with minimal runoff was characterized by the PA as “she’s got blood flow.” “If you are letting a PA look at blood work or an X-ray report and telling you what it says, that is fraught with disaster,” says Spicer.

Another issue is that PAs and NPs are doing clinical exams in the ED and “the clinical exam is only as good as the examiner,” he notes. Spicer was involved with a lawsuit naming an EP alleging misdiagnosis of epididymitis in a young man who presented with testicular pain. “The EP was involved only tangentially. The PA made the call, and it was wrong,” he says.

EPs are increasingly relying on PAs or NPs to take the patient’s history as well, says Spicer. “Previously, EPs got away with ordering a whole battery of tests, but now they have to have a real justification for that, which means they have to rely more on the history,” he adds. “If you don’t have a good history, things are going to fall through the cracks.”

State Laws Vary

It’s difficult for the EP to avoid legal responsibility for something a PA does because the PA has to be under the indirect supervision of the EP, whereas NPs pose more exposure to the hospital, says Spicer.

While state laws vary, as a general rule, if the NP or PA is working under the supervision of the EP, the EP could be liable for the NP’s or PA’s negligent mistakes on a theory of failure to supervise and to make sure no such mistakes occur, says Richard D. Watters, JD, an attorney at Lashly & Baer, PC, in St. Louis, MO.

“It is safe to say that if the law or the hospital obligates the EP to supervise the PA or NP, the EP may be liable for injury they cause if the EP failed to properly supervise the NP or PA,” says Watters.

However, in states where NPs or PAs have collaborative practice agreements that delegate medical decision-making to the NP or PA, the law may not make the EP responsible for supervising the NP’s or PA’s treatment decisions, adds Watters.

“Therefore, in such states, [the EP] may not be liable for their negligent acts,” he says. “In such states, [the EP] may nevertheless be held liable if he delegated authority to the NP or PA that they were not qualified by education, training, skill, and certification to perform.”

NPs and PAs have now been granted independent practice in some states, adds Watters, and the EP should not be legally responsible for them unless the workplace rules make the EP responsible for supervision or oversight.

For example, some hospitals grant PAs and NPs privileges only if they are sponsored by a staff physician, and the medical staff bylaws or the terms of their privileges make the sponsoring physician responsible for supervising the NPs or PAs, says Watters. “Many hospitals, in their employment agreements, require the EP to oversee or supervise an NP or PA. Those contracts may impose liability where it might not otherwise exist,” he explains.

Know EP’s Requirements

Steven J. Lempp, regional vice president of the MGIS Companies, a Salt Lake City, UT-based provider of insurance products and services for physicians, says the most common malpractice claims he has seen against NPs and PAs involve medication errors, communication oversights, and working while impaired. “A supervising ER physician was named in a claim involving a PA who had been accused of inappropriate touching,” he says. “The claim was filed against the PA for the action and against the supervisor for poor supervision and training of the PA.”

EPs often don’t realize they can be held liable for failure to follow up with a PA or NP if the PA or NP delayed or failed to order specific labs critical to patient care, says Lempp. He recommends that EPs take these steps:

• Assure that all other health care providers under the EP’s supervision have medical professional liability insurance;

• Have an attorney review all legal contracts pertaining to professional services to be provided by the EP to a third party;

• Contact their broker, insurance consultant, risk manager, or the insurance company’s representative to review the EP’s medical professional liability policy and to better understand how the contract may perform in the event a claim is made against the EP for the professional services provided by an NP, PA, or other health care provider under the EP’s direction and supervision.

Supervising EPs commonly have these duties and requirements, says Lempp:

• Establishing and delegating the procedures performed by the provider within the scope of the practice of the supervising physician;

• Being responsible for a timely review of patient records;

• Being continuously available to consult with or collaborate with the provider;

• Reviewing the provider’s performance;

• Designating an alternate supervising physician if the supervising physician is not available.

Lempp says that a common misconception involves the scenario of an EP signing a state medical or nursing licensing board application as a supervising physician for an NP or PA, wherein the provider is not employed by the physician practice, practices at a separate facility, and the EP does not see the patient.

“The medical and nurse licensing board of the individual states regulates professional licensing for NPs and PAs,” says Lempp. “It is, therefore, incumbent on the EP to become familiar with the state rules, regulations, and statutes governing a physician’s role and responsibility as a supervising physician when signing an application.”

Sources

For more information, contact:

  • Steven J. Lempp, Regional Vice President, The MGIS Companies, Salt Lake City, UT. Phone: (800) 969-6447, ext. 128. E-mail: Steve.Lempp@mgis.com.
  • David W. Spicer, JD, Palm Beach Gardens, FL. Phone: (561) 625-6066. E-mail: D.Spicer@davidspicerlaw.com.
  • Richard D. Watters, JD, Lashly & Baer, PC, St. Louis, MO. Phone: (314) 621-2939. E-mail: rdwatters@lashlybaer.com.