Nurse Practitioners Working in ED Pose Unique Legal Risks
By Stacey Kusterbeck
The number of high-acuity patients for whom nurse practitioners (NPs) are providing care in the ED is rising, according to a group of researchers who analyzed billing codes logged from 2015 to 2018.1 The level of acuity among patients became worse over the same period, according to the severity of the codes used to bill for the care provided. In contrast, acuity levels for patients who saw emergency physicians (EPs) decreased over time.
“That does not seem to make sense, and doesn’t seem to be the way NPs were intended to be used in the ED. The original concept is that the NPs see the patients who, if we had adequate primary care physicians, would be seen in the primary care setting,” asserts Roberta P. Lavin, PhD, MA, RN, FNP-BC, FAAN, one of the study authors.
In terms of ED care, board-certified EPs are “the gold standard,” says Lavin. It is unclear why NPs are seeing more high-acuity patients. It is possible some of those patients appeared low-acuity initially, but their conditions turned out to be more serious, resulting in a more serious CPT code. “Since this study looked only at billing records, and not medical records, how the patient presented initially at triage is unknown,” Lavin notes.
Short-sighted efforts to cut costs is a more likely factor for NPs seeing high-acuity patients, according to Lavin. Some administrators view staffing as a line item on a budget without considering the bigger picture. “In my view, they tend to see it in terms of the bottom line. What does it cost to pay this person for a year? Certainly, NPs are cheaper, but there is more to cost than just salary,” Lavin says.
For instance, if many patients are returning to the ED or hospital within days or weeks after they saw an NP, that is something administrators should scrutinize, Lavin advises. ED policies vary on the criteria for credentialing NPs. “It is not clear how well that’s being done,” Lavin observes.
There are two important considerations. One, is the care the NP provides and submits bills for within the scope of practice for NPs? Two, does the care reflect what the NPs are credentialed to do based on their competencies? “We need to move beyond the turf battle between NPs and EPs, and focus on the quality of patient care,” Lavin urges. “It’s an issue that needs more attention.”
In some malpractice cases, the allegation is NPs staffing the ED fast track failed to recognize subtle symptoms or lab results that merited sending the patient through the regular ED for an EP evaluation. “We see the same allegations against NPs as we do ED physicians; however, the added claim is a failure to consult with the attending physician,” says Amy Evans, JD, executive vice president of business development and liability claims at Intercare Insurance Services in Bellevue, WA.
Most plaintiff attorneys also name the supervising EP in these lawsuits. The allegation against the EP is failure to properly supervise. “Thorough charting reflecting the NP’s thought process, differentials, reason for ruling out the more critical potential diagnoses, and detailed discharge instructions help defend all providers should litigation result,” Evans says.
If an ED malpractice claim is filed, and an NP was involved in the patient’s care, the NP’s liability exposure will depend on how closely the NP was involved in the care, and also on hospital policies and state law.
“If the NP bore primary responsibility for the patient, and neither state law nor hospital policies require close oversight by a physician, then the NP will face whatever allegations are relevant to the particular instance of care,” says Benjamin McMichael, JD, associate professor at the University of Alabama School of Law.
If the NP misdiagnosed the patient, the claim will proceed on that basis. “The catch with this occurs when either the hospital’s policies or state law require physician supervision of NPs,” McMichael says.
If so, the claim will proceed against the NP. Additionally, the supervising EP may face a claim for vicarious liability, a legal theory that allows an injured patient to hold the supervising EP liable for the NP’s mistakes. “Vicarious liability claims are not negligence or malpractice claims. From the physician’s perspective, these claims operate as a form of strict liability,” McMichael says.
Once the requisite elements, which vary across different types of vicarious liability theories, are met, the supervising EP can be held liable for the errors of the NP. This is true regardless of whether the EP acted negligently. “Unlike vicarious liability claims, allegations of lack of adequate supervision operate as negligence claims against the supervising EP,” McMichael notes.
To prevail, the plaintiff attorney must establish the physician was obligated to supervise the NP. Generally, this duty is easier to establish when hospital policy or state law requires physician supervision of NPs. “The plaintiff would then have to establish that the physician failed to perform this duty in some way, and that this failure caused harm to the patient,” McMichael explains.
For example, the plaintiff could demonstrate the EP failed to ensure an NP followed the proper protocol for a patient complaining of chest pain, resulting in delays in obtaining the appropriate tests to diagnose a heart condition. Any documentation showing the EP had a good reason to fail to supervise the NP would be helpful to the EP’s defense. The EP might have been providing care to a critically ill patient at the time. “That kind of documentation may be enough to show that the physician behaved reasonably under the circumstances,” McMichael offers.
If a state nursing board becomes aware that an NP is practicing outside his or her scope in the ED, the board will initiate an investigation. “If a violation is found, it will be up to the board what the appropriate punishment is,” McMichael says.
The board might determine that a cease and desist letter is sufficient. In more egregious cases, the board might determine license suspension or revocation is appropriate. “But unless this behavior results in harm, it will not result in malpractice liability,” McMichael notes.
If an NP is practicing outside his or her scope and a patient is injured, a malpractice claim against the NP is possible. However, the act of practicing outside one’s scope does not, in itself, constitute malpractice. “If an NP performs the relevant procedure perfectly or gets lucky and no harm occurs, the patient will not have a viable malpractice claim,” McMichael explains.
1. Veenema TG, Zare H, Lavin RP, Schneider-Firestone S. Analysis of trends in nurse practitioner billing for emergency medical services: 2015-2018. Am J Emerg Med 2022;62:78-88.
If a malpractice claim is filed, and a nurse practitioner was involved in the patient’s care, his or her liability exposure will depend on how closely the practitioner was involved in the care. Is the care the practitioner provides and submits bills for within the scope of practice? Does the care reflect what the providers are credentialed to do based on their competencies?
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