Ask the Experts - What Are the Malpractice Needs of Physicians Who...

Question

Does the supervising physician of a nurse practitioner (NP) need additional coverage on his malpractice insurance to protect him from being sued by a patient he has never seen? What special malpractice needs do self-employed NPs have?

Fred Ramirez, MSN

Response from Carolyn Buppert, NP, JD

Three words in the first question require qualification before providing a response.

First "supervising" suggests that a physician is looking over the shoulder of an NP. A physician who truly supervises would not be in the position of "being sued by a patient he has never seen." Only 8 states use the word "supervise" in their law authorizing NP practice. In those states, a physician arguably could be vicariously liable for the mistakes of a nurse practitioner, under 1 of 3 legal maxims -- "respondeat superior," "captain of the ship," or "negligent supervision."

"Respondeat superior" ("Let the master answer") means that a master is liable in certain cases for the wrongful act of his servant, and principal for those of his agent. Whether a physician is liable under respondeat superior for an NP's mistake would depend on whether an employer-employee or a principal-agent relationship exists between the MD and NP. Under the "captain-of-the-ship" doctrine, a doctor can be held liable for the negligence of nurses under his or her supervision, even if the supervisee is not the doctor's employee. Many states no longer recognize the "captain-of-the-ship" doctrine, and, more important, it has not been successful outside the operating room. A physician supervisor may be liable for a supervised NP's mistakes under certain circumstances. However, a supervisor is not liable for every action or inaction of a supervisee.Supervisors who fail to respond, who are unavailable, or who provide inadequate training may be liable for actions or omissions of supervisees.

Most states use the word "collaboration" in describing the physician-NP working relationship. Responsibilities of a collaborator may be identified by state law or stated in a written practice agreement. If state law or a written agreement between MD and NP states that the NP decides when collaboration or consultation is necessary, and if an NP fails to seek consultation, then a judge or jury is unlikely to hold a physician collaborator liable for the NP's mistake. On the other hand, if an NP consults his or her collaborator, and they decide upon a plan which is later found to be disastrous, or if the collaborator is unavailable, then the collaborator may be liable for damages for the NP's mistake.

Second, whether the supervising physician "needs" additional coverage would depend on the likelihood of the supervisee NP getting sued. That depends upon 4 things:

the competence and personality of the NP,
the effectiveness of the risk management systems in the practice or agency,
the personality and litigiousness of the patients and
the quality of the physician's supervision.

Third, malpractice insurance cannot "protect" a clinician from being sued. Insurance protects a physician or NP from having to pay attorney's fees and damages out of pocket. When a patient is injured, and contends that a physician, hospital, nurse, nurse practitioner, or all of the above is responsible, the patient, now a plaintiff, casts a wide net, naming everyone who could have caused the injury. In the course of a lawsuit, as information is exchanged between defendant and plaintiff lawyers, various parties are dropped as it becomes clear that liability cannot be proved. If a physician has fulfilled his or her supervisory responsibilities, has not given an NP bad advice, and has not caused a patient's injury by his or her own action or lack of action, then the physician will likely be dropped as a defendant.

The ability of an insurance company to make its own policies is yet another variable. In general, insurance company policies aim to reduce the company's liability and enhance profit. If NPs are sued frequently and if courts frequently order NP collaborators, supervisors, and/or employers to pay damages, then the insurers' underwriters and actuaries will insist upon policies which protect the revenue stream, ie, insurers will require physicians to pay extra premiums to cover the risk. But if losses due to NP mistakes are minimal, then no extra premiums will be required. In the past and in general, insurers have not required physicians who supervise, collaborate with, or employ NPs to pay extra premiums. Those policies may change at any time.

A physician who agrees to collaborate with a self-employed NP is less likely to be found liable for the NP's mistake than a physician who employs or supervises an NP. In the case of the self-employed NP, there is no potential for "respondeat superior," "captain of the ship," or "negligent supervision" arguments. If the agreement between the NP and physician states that the physician is to be consulted at the discretion of the NP, then the physician would not risk litigation from a "patient he has never seen." If an NP fails to consult or refer when necessary, then it is clearly the NP, not the MD, who would be liable for any injury suffered by a patient.

When researching the type of malpractice insurance to purchase and the parties who should be covered, consider the MD/NP relationship in the specific situation, and review the state's nurse practice act, state law authorizing physicians to delegate medical work, and any additional agreements between the physician and the NP.

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