Malpractice Risks With NPs and PAs in Your Practice

Mark Crane

January 03, 2013

Introduction

The growth in the number of physician assistants (PAs) and nurse practitioners (NPs) has been enormous and is likely to intensify. This trend will have a dramatic impact on physicians, whether employed or in private practice, in terms of both liability issues and day-to-day practice.

Thanks in part to the looming doctor shortage and the Affordable Care Act, which will ultimately allow 30 million Americans to acquire health insurance, these midlevel providers will be treating more and more patients and performing services that were formerly the exclusive province of physicians.

There are currently about 85,000 certified physician assistants across the country, an increase of more than 100% over the past 10 years, according to the American Academy of Physician Assistants (AAPA). PAs can prescribe in all 50 states but must work under the supervision of a doctor.^[1]

There are about 155,000 NPs nationwide, up from 111,000 in 2003, according to the American Academy of Nurse Practitioners. The vast majority of NPs work in primary care practices or for clinics and hospitals under a physician's supervision. In 18 states and the District of Columbia, NPs can practice without a physician's direct involvement but may need a formal collaborative arrangement with a doctor.

These allied health professionals earn an average of almost $90,000 a year. State laws vary greatly on what they are permitted to do and the level of supervision required by physicians.

Why Midlevels Are Usually Sued

Midlevel providers and their employers are typically sued for inadequate supervision or when the PA or NP practices beyond the scope of their training.

"Doctors need to remember that while you can delegate a task, you haven't delegated the liability," said Robin Diamond, RN, JD, Senior Vice President and Chief Patient Safety Officer for The Doctors Company, a liability insurer based in Napa, California. In one example, a child presented at a pediatrician's office with fever, sore throat, and some pain, said Diamond. An NP prescribed an antibiotic and asked the mother to call back if there was no improvement. A couple of days later, the mother reported the pain was getting worse. The NP changed the antibiotic. Within 48 hours, the girl was in the emergency department (ED), diagnosed with meningitis.

"The case raises serious questions," Diamond said. "Why would the NP feel it was within her scope of practice to prescribe a new drug without asking the physician? When is it appropriate to call the doctor? Was he reviewing her notes? Why wasn't there more communication? We see this pattern repeated over the years."

In another case, a patient presented to the ED with a fracture that was misdiagnosed by the PA. "The patient never saw the physician, and he didn't even know the patient was in the hospital," said Craig P. Sanders, a malpractice defense attorney with Rainey Kizer Reviere & Bell in Jackson, Tennessee. "A 2010 decision by the Tennessee Supreme Court held that a supervising physician can be held vicariously liable for the negligence of his or her PA even if the physician never saw or treated the patient. This means that the doctor may automatically be held liable if the PA is found to have been negligent."

A third example: A 41-year-old woman with vaginal bleeding and abdominal pain went to an independent NP family practice clinic. In each of 6 visits over a 4-month period and despite worsening symptoms, the NP attributed the symptoms to a variety of benign causes.

The collaborating physician was never consulted. However, she cosigned the NP's notes. She and the NP were named as codefendants in the malpractice suit after the patient died of endometrial cancer. "The NP's failure to consult with or refer the patient to the physician was the primary issue identified by defense experts. The physician was held liable for having signed notes she never read and for having inadequate practice policies in place for the NP," according to a continuing medical education presentation by the Massachusetts Medical Society and ProMutual Group, a liability carrier.^[2]