Physicians Who Work With NPs: What's the Liability Risk?

Carolyn Buppert, MSN, JD

Disclosures

September 01, 2017

To submit a legal/professional nursing question for future consideration, write to the editor at lstokowski@medscape.net (Include "Ask the Expert" in subject line.)

What Is the Malpractice Liability Risk for Physicians Who Work With Nurse Practitioners?

Response from Carolyn Buppert, MSN, JD
Healthcare attorney

Nurse practitioners (NPs), like any clinicians, are at risk for being sued for malpractice. If a physician is associated with an NP (through employment, independent contracting, state-mandated collaboration, consultation, or supervision) who is sued, the physician bears some risk of being sued as well.

Physicians thinking about hiring or otherwise collaborating with NPs should understand that lawsuits involving NPs don't even total 1% of all medical malpractice closed claims. According to PIAA data (PIAA is a trade association of medical malpractice insurers), there were 351 closed claims involving NPs between 2001 and 2010.[1] During that period, more than 174,000 claim payments were reported to the National Practitioner Data Bank.[2]

Insurance premiums for NPs are low compared with physicians' premiums, indicating that insurers view NPs as relatively low-risk. Some commenters have suggested that hiring an NP rather than a physician is a move that reduces risk, because NPs are sued less frequently than physicians.[3,4] Nevertheless, no one wants to be sued, and it is reasonable to expect that the numbers and proportions of NPs being sued will rise in coming years as NPs take on more autonomy, responsibility, and procedures. (In an accompanying article, I suggest how to avoid malpractice liability when physicians and NPs work together.)

Risk and Model of Practice

It is important to note that a physician-NP relationship may take one of three forms or models, and a physician's liability risk and willingness to take on risk by working with an NP is likely to differ depending on the model.

Model 1. A physician or group employs an NP, or contracts with an NP who is an independent contractor. The physician's risk and reward are high. The risk is that a plaintiff (injured patient) can almost always sue a clinician's employer for negligence of an employee. A plaintiff usually can sue a contractor as well, under the legal theory of agency. Whether or not the employer or contractor is ultimately held liable depends on the facts of the case and state law. Balancing out the risk is the reward—a practitioner or group usually makes significant profit from an NP's billings.

Model 2. A physician and NP both are employed by the same hospital or facility. Because of requirements in some states that an NP work in a collaborative relationship with a physician, the hospital or facility requires that the physician be the NP's designated collaborator. For that physician, reward is low, but so is the risk. It is unlikely that a plaintiff could or would sue an individual physician who is assigned by a facility as collaborator to an NP. The plaintiff will sue the employer—the hospital or facility. However, depending on how involved the physician collaborator was in the care of the patient, how much or how little the collaborator collaborated, and the requirements of state law, a physician employee/collaborator could be named in a lawsuit against an NP employed by the same entity.

Model 3. An NP owns a practice and engages a physician to be the collaborator, for state law purposes. Here, the physician takes on minimal liability in return for whatever the NP is paying the physician. A plaintiff is unlikely to sue the physician collaborator and probably won't even know who the physician collaborator is. It is possible, however, for a savvy attorney to figure out that there must be a physician collaborator under state law, figure out who the physician collaborator is, and name that physician in a lawsuit. Whether the physician is determined by a judge or jury to be liable depends on the fact of the case and state law on physician collaboration.

What Happens in Court?

I analyzed six cases against NPs in which physicians were named and found liable. Note that it is not easy to research this topic. There is no database where the details of cases and the clinicians' relationships are tracked. The facts and details of trials are not publicly disseminated. However, if an attorney writes up a report, or a case is appealed and a judge writes an opinion, sometimes one can get enough detail to make some conclusions. I found six cases in which there was enough published information to see some patterns. My analysis revealed two patterns:

  1. Physician was involved with the care of the patient and was found liable. This was the result in four cases.

  2. Physician was not involved in the care of the patient, but state law required specific physician oversight, and the physician's involvement with the NP's practice did not meet the state's requirements for oversight. This was the result in two cases.

I found no cases in which a physician was not involved in the care of the patient but was the designated collaborating physician and fulfilled the state law requirements for overseeing the NP, and was found liable along with the NP.

There are other cases in which a physician was named in a lawsuit involving a NP, but the physician was dropped from the case during the discovery period (before trial). It is not unusual for a plaintiff's attorney to sue anyone with any connection to a patient's care and then drop defendants as it becomes clear that their involvement did not cause the patient's injury.

What clinicians should focus on is that they may be named in a lawsuit and found liable if they become involved in the care of a patient who has a bad outcome. So, one way to reduce risk is to avoid becoming involved. Another way is to become involved, but make sure your actions are consistent with the standard of care. And if a state requires specific actions of a physician collaborator, such as chart review within a specified timeframe, then a physician should do that work or take the risk of being held liable if the NP is sued.

Visit Carolyn Buppert's YouTube channel for more legal issues for nurse practitioners, in small doses.

Comments

3090D553-9492-4563-8681-AD288FA52ACE
Comments on Medscape are moderated and should be professional in tone and on topic. You must declare any conflicts of interest related to your comments and responses. Please see our Commenting Guide for further information. We reserve the right to remove posts at our sole discretion.
Post as:

processing....