Evolving Legal Exposure for Supervising EPs
By Stacey Kusterbeck
If an ED patient seen by a nurse practitioner (NP) or a physician assistant (PA) sues for malpractice, the supervising emergency physician (EP) is likely to be named as a co-defendant. That is true even if the EP never saw or heard about the patient, according to a recent study.1
“We wanted to characterize lawsuits against NPs and PAs, specifically describing the alleged error, the legal outcome, and the patient outcome,” says Summer Ghaith, JD, the study’s lead author and a medical student at the Mayo Clinic Alix School of Medicine in Scottsdale, AZ.
Ghaith and a colleague chose to examine this area of liability because of the increased use of advanced practice providers in EDs. They analyzed 144 malpractice cases from 1985 to 2020 involving PAs and/or NPs and found:
- Ninety-nine cases involved a PA, 49 cases involved an NP, and four cases involved both a PA and NP.
- The malpractice cases took a median of five years to resolve.
- Primary care was the most-often involved specialty with 50 cases, followed by emergency medicine with 24 cases.
- Patients were given at least one prescription in 35 cases, with eight cases involving controlled substances.
- Failure to diagnose, procedural errors, and failure to treat were the most common errors alleged.
As for legal outcomes, 37.5% resulted in no liability on behalf of the supervising physician, 27.8% resulted in a settlement, 25.7% resulted in a finding of negligence against the supervising physician, and outcomes were unknown in 9% of the cases.
The authors assessed the supervising physician’s involvement to understand physicians’ risk of liability when acting in a supervisory role. Most cases (96) named the supervising physician. However, the supervising physician saw the patient in only five of those cases, and the supervising physician heard about the patient in just 17 cases. In 51 cases, it was unclear whether the supervising physician saw or heard about the patient. In 71 cases, the supervising physician was not involved in the ED visit that resulted in the lawsuit. “ED physicians are at risk of liability when serving in various supervisory capacities for NPs and PAs,” Ghaith concludes. Two case examples from the analysis:
- A patient at 30 weeks gestation presented to an ED complaining of abdominal pain and was seen by an NP. The patient was never seen by the supervising physician and was discharged with a diagnosis of gastroenteritis. Hours later, the patient visited another ED, where she was diagnosed with placental abruption, necessitating emergent delivery. Unfortunately, the baby did not survive. The fact that the NP never consulted the supervising physician was a key area of focus during the malpractice litigation.2
- A patient presented with leg pain and was evaluated by a PA. The patient underwent a venous ultrasound, which was negative. The PA discussed the patient with the supervising physician, including the PA’s presumptive diagnosis of cellulitis. The physician did not see the patient before discharge. Later that night, the patient returned by emergency medical services (EMS) unresponsive from septic shock secondary to limb ischemia from arterial occlusion of the leg, which was missed on the previous ED visit. The lawsuit resulted in a $5 million verdict against both the PA and the supervising physician.3 The fact that the supervising physician did not personally examine the patient was a pivotal factor in the lawsuit. Based on the ED medical record, the supervisory arrangement was unclear.
“This type of arrangement is common, in which the physicians just ‘sign off’ on non-physician providers’ diagnoses without any direct evaluation of the patient. That is quite dangerous, as demonstrated by this case,” warns Rachel A. Lindor, MD, JD, research chair in the department of emergency medicine at Mayo Clinic in Scottsdale, AZ.
States are continuing to expand the practice authority of non-physician providers.4,5 The effect of this change on the liability risks to supervising EPs is unclear and evolving. “Emergency physicians may assume that working in states where NPs can practice independently would lessen their liability exposure,” Lindor notes. However, that is a false assumption if the EPs are working at EDs where the physicians technically are in a supervisory role. “In fact, their risks may be heightened if the non-physician providers are behaving more independently and seeking supervision less often. The physicians are still technically responsible in a legal sense,” Lindor explains.
When it comes to supervision, EPs’ liability risks largely are dependent on the policies of their specific group or institution regardless of state law. Some EPs work in a state that allows advanced practice providers to practice independently, but their ED group still places the EP in a supervisory role. “The physician is still, more often than not, legally responsible for the care provided by non-physician providers,” Lindor says.
Many EPs do not realize their true liability exposure in this situation until it is too late and a lawsuit has been filed. “Creating a system that allows EPs to actually provide appropriate supervision — by providing time for supervision, not just time to sign charts at the end of the shift — is paramount,” Lindor says.
It is common for supervising ED attending physicians to be named in a lawsuit no matter what level of involvement they had in caring for a patient seen by an NP, PA, or resident, says Melanie Heniff, MD, JD, MHA, FAAEM, FAAP, associate professor of clinical emergency medicine and pediatrics at Indiana University School of Medicine. Often, the NP, PA, or resident involved in the care will be named. Plaintiff attorneys may allege that the EP had a duty to the patient because the EP was in the ED in a supervisory role. “Electronic medical records will often input the name of the physician on duty into the record, even if the patient was only seen by a PA or NP,” Heniff notes.
EPs who sign charts of patients seen by residents, PAs, or NPs should make clear in the chart whether they saw the patient. Ideally, it should include at least a brief note on the physician’s assessment of the patient, suggests Heniff. If local practices dictate that a physician must sign the charts of patients seen by NPs or PAs that the physician had no real-time opportunity to see, Heniff recommends noting it in the chart. “For example, physicians can include a statement such as, ‘Chart reviewed and signed as required. I did not see the patient,’” Heniff says.
- Ghaith S, Lindor RA. 83 Medical malpractice lawsuits involving nurse practitioners and physician assistants. Ann Emerg Med 2023;82:S34.
- Cooper v. Eagle River Memorial Hospital, 270 F.3d 456 (7th Cir. 2001).
- Howland v. Wadsworth, 749 SE2d 762 (Ga. App. 2013).
- Kleinpell R, Myers CR, Schorn MN. Addressing barriers to APRN practice: Policy and regulatory implications during COVID-19. J Nurs Regul 2023;14:13-20.
- Martin B, Buck M, Zhong E. Evaluating the impact of executive orders lifting restrictions on advanced practice registered nurses during the COVID-19 pandemic. J Nurs Regul 2023;14:50-58.
If an ED patient seen by a nurse practitioner or a physician assistant sues for malpractice, the supervising emergency physician is likely to be named as a co-defendant. That is true even if the emergency physician never saw or heard about the patient, according to a recent study.
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