October, 2017
Charles A. Pilcher MD FACEP
Questions frequently arise in medical malpractice cases about the role played by physician “agents” in the care of a patient. Sometimes those agents are medical or surgical residents in training; sometimes those agents are physician assistants or nurse practitioners. When an unanticipated outcome occurs and such a situation is present, the question of responsibility arises.
Three articles have recently appeared addressing this. Below are summaries and links to the full articles
Nurse Practitioners:
This article by Carolyn Buppert MSN JD appears in Medscape and is based on information from PIAA, which reviewed 351 closed claims involving NP’s between 2001 and 2010. Such claims are rare, but an associated physician may well bear some of the risk. (Ms. Buppert lists policies and procedures to reduce that risk in a separate article.) She then summarizes the 3 most common models of NP/Physician collaboration and compares the risk.
Model 1. Risk is highest in the employment or independent contractor relationship, but “Whether or not the employer or contractor is ultimately held liable depends on the facts of the case and state law.”
Model 2. Risk is lower in the “designated collaborator” model in which a hospital or other third party requires an NP to have such a supervisor/collaborator. More likely, the facility employing the NP will be liable, but it depends on the involvement of the physician collaborator and (again) state law.
Model 3. Risk is lowest, according to Ms. Buppert, when an NP practices independently but designates a physician collaborator to comply with state law Again, the facts of the case and state law can be determinative.
Case Analyses:
Ms. Buppert analyzes 6 cases in detail in which physicians were found liable. In 4 of the cases, physicians were involved with the actual care of the patient. Two of the cases were related to state requirements for oversight in which the physician was liable for failing to meet required standards. No cases were found in which a designated collaborating physician meeting state law (e.g., for chart review within a specified time frame) – and not involved in the patient’s care – was held liable (although they were sometimes named but later dropped or found not to be negligent.)
The liability of physicians for acts of PA’s was addressed in a May, 2017, article by Brown and Lomurro in the New Jersey Law Journal. (free registration required). The article is based on NJ state law but may provide insight into the general liability of physicians working with PA’s.
NJ law 45:9-27 requires that every PA “be under the supervision of a physician at all times during which the physician assistant is working in an official capacity.” Specific requirements include:
- Supervision may be physical presence or contact through electronic or other means of communication.
- The patient must be informed that the medical services are being provided by a PA.
- The PA must be identifiable as a “physician assistant,” “PA-C” or “PA.”
- All medical record entries by the PA must be signed and followed by the designation, “PA-C” or “PA.”
- Scope of practice must be clearly defined for the PA, though that scope may well be quite broad. Specific examples of the scope that may be delegated under supervision are described by the New Jersey Board of Medical Examiners in N.J.A.C. 13:35-2B.4. Medical services of a PA can also be authorized or limited through a signed “delegation agreement” defining the PA’s role “including any specific aspects of care that require prior consultation with the supervising physician” and requirements for record review.
The authors emphasize that in all medical malpractice cases involving a PA, such delegation agreements play a major role. They add that, while there has been no reported case in NJ of vicarious liability of a physician for the actions of a PA, state law says that “a physician assistant shall be conclusively presumed to be the agent of the physician under whose supervision the physician assistant is practicing.”
In August 2017 JAMA published an article by Thiels et al. using Westlaw to summarize med mal lawsuits involving surgical residents. The authors note that “medical malpractice litigation against surgical residents is rarely discussed owing to the assumed legal doctrine of respondeat superior.” They found that “70% of cases involved elective surgery and 69% named a junior resident, while lack of direct supervision by attending physicians was cited in 55% of cases.” During a 10 year period, they found 87 malpractice cases involving surgical trainees, and 77% involved death or permanent disability. Interestingly, the cases more often involved questions of peri-operative, pre-operative and post-operative errors involving medical knowledge and decision making rather than intra-operative errors and injuries. This was especially true for cases involving junior residents. The resident’s failure to evaluate the patient was cited in only 12% of cases while lack of direct supervision by attending physicians was noted in 55%. A plaintiff verdict or settlement resulted in 48%. The authors conclude that education regarding oversight of peri-operative management, particularly among junior residents, and appropriate supervision by attending physicians should be targeted to prevent litigation.