Malpractice Risks With NPs and PAs in Your Practice

Mark Crane

January 03, 2013

Midlevels and Liability Risk

How will the growth in the number of PAs and NPs affect your liability risk?

Some experts say that midlevel providers lower malpractice risk because they spend more time with patients, especially on follow-up, and score higher in patient satisfaction ratings.

"We often see claims because patients are dismissed too quickly, before their questions can be answered," said Robin Diamond. "NPs and PAs do spend more time with patients. When they are appropriately supervised, that helps build relationships and lowers liability risk."

On the other hand, some attorneys and physicians argue that midlevels don't have the same extensive training as physicians and often practice beyond their areas of expertise. "Whenever a midlevel is sued, you can be sure that the supervising physician will be sued as well," said Craig Sanders.

"Courts have held that the midlevel is an agent of the physician, who can be held vicariously liable for negligence even if he never saw the patient," he said. "Physicians don't realize the extent of supervision necessary to keep the liability risk low."

What's the actual experience? Numerous studies have shown that midlevels are far less likely than physicians to be sued. When they are sued, the awards and settlements are much smaller than for cases involving physicians, according to Ellen Rathfon, senior director of professional advocacy for the AAPA.

The most extensive study on the issue was conducted in 2009 by researchers for the Federation of State Medical Boards, which looked at claims filed from 1991 to 2007 with the National Practitioner Data Bank.^[3]

"Seventeen years of observation suggest that, if anything, PAs and NPs may decrease liability, at least as viewed through the lens of a national reporting system," the authors wrote. "During that period, there was 1 payment for every 2.7 active physicians, 1 for every 32.5 active PAs and one for every 65.8 active and inactive advance practice nurses. In percentage terms, 37% of physicians, 3.1% of PAs and at least 1.5% of APNs [advance practice nurses] would have made a malpractice payment. The physicians mean payment was 1.7 times higher than PAs and 0.9 times that of APNs, suggesting that PA employment may be a cost savings for the health care industry along with the safety of patients."

"From a policy standpoint, it appears that the incorporation of PAs and APNs into society has been a beneficial undertaking and liability has not increased, at least compared to doctors," the authors concluded.

Still, cases involving midlevels are likely to grow along with the number of practitioners. "The increased numbers of PAs may result in increasing numbers of claims per year, but we do not anticipate a change in the relative liability risk of PAs because the profession's team-based model of care is not changing," said Ellen Rathfon of AAPA.

How to Lower Your Risk When Working With PAs and NPs

There are several steps physicians should take to lower their malpractice risk, say insurers and attorneys.

Notify your malpractice carrier when hiring a midlevel. "Doctors who change their practice by hiring an allied health professional are required to notify the carrier," said Robin Diamond. "The premium will be increased," but nominally -- often by less than $2000.

Both the AAPA and the American Academy of Nurse Practitioners urge their members to maintain independent policies in addition to whatever coverage the employing physician provides. "We know that 98% of practicing PAs have liability insurance coverage and that 97% of employers pay the cost of that coverage," said Ellen Rathfon of AAPA.

Verify credentials. Call the relevant state board or professional association to verify that the applicant graduated from an accredited program and has an active license. Query the National Practitioner Data Bank. Perform a criminal background check and contact all references, risk managers advise.

Have written protocols. Most states require some form of written protocols to define the role of the midlevel. They can vary greatly. "We like them to be as specific as possible to cover the main types of cases the midlevel will see," said Robin Diamond. "If a lawsuit occurs, it can be easily seen if the PA or NP was paying attention to the right thing."

Some attorneys disagree about the level of specificity required. "It isn't clear that you need written protocols on each clinical situation, such as headache," said attorney Craig Sanders. "The more detailed you get, the more you can set yourself up to lose in court. You may find that you didn't always comply exactly with the guideline. Each patient is different. I'd be reluctant to advise a lot of detail about how to treat specific conditions."

Supervise appropriately. What a PA or NP is permitted to do varies widely from state to state. "Supervision can mean being in the same room or a few miles away, depending on the state," said Robin Diamond. "Make sure you comply with the regulations," said Craig Sanders. "Some may say you have to review 20% of the PA's charts every 30 days. Doctors should go above and beyond the minimum requirements."

Create a culture that encourages questions. "We favor weekly meetings," said Diamond. "Make sure the midlevel knows that questions are welcome." Craig Sanders agrees. "Because physicians can be held liable for what the midlevel does, it's imperative that doctors have a good comfort level about their work. They should take a role in their educational development and let them know that whenever they are in doubt, they should talk to the doctor and won't ever be criticized for asking too many questions."