Must I Take Calls From a Nurse Practitioner's Patients?

Carolyn Buppert, MSN, JD


June 21, 2019

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A physician sent the following question to Medscape:

I engaged a nurse practitioner (NP) as an independent contractor to cover some hours at my practice. On Christmas Eve, I got calls from two patients, who had been seen by the NP and who needed prescription refills. The patients said they called the NP, and she said she wasn't on call, and to call me. I don't know these patients, and I think it is her job to take care of them. Whose responsibility is it to take care of the patient in this scenario?
Response from Carolyn Buppert, MSN, JD
Healthcare attorney

The short answer is: One of you needs to take care of the patient's needs, and you need to work it out between you. If you aren't able to refill the patient's medications in a safe manner, then you need to persuade the NP to do it. Liability-wise, both of you are at risk of being found liable if the patient has a bad outcome related to lack of care.

The general rule is that an employer is liable for the negligence of employees but is not liable for the negligence of independent contractors. However, there are plenty of exceptions to this general rule. For example, if a patient believes that you and the NP are in the same group practice, because that's what is apparent to the outside world, then you could be liable under the legal theory of agency. In addition, if you misclassified the NP as an independent contractor when he or she actually meets the criteria for being an employee, a court is likely to consider you liable for his or her negligence. You can't get around liability by misclassifying an employee as an independent contractor. You might want to reevaluate your decision to have the NP be an independent contractor. Start by determining whether your arrangement fits the IRS criteria for independent contractors.

Whether you end up deciding that the NP is an employee or an independent contractor, you and the NP need to agree on who is going to take after-hours call in the future and who is going to attend to the NP's patients' needs on a holiday. This is a term of employment that clinicians don't always think of when developing employment contracts, but it is something that the parties should agree on at the onset of the arrangement.


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