Malpractice Consult

By Lee J. Johnson, JD

Liability insurance for a physician assistant

Q: Our primary care practice recently hired a physician assistant. Does this change our liability exposure? Should we increase our malpractice coverage?

A: The scope of a PA's practice—and therefore your potential liability—is dictated by state law, and rules vary considerably about diagnosing, prescribing, and the amount of supervision needed. If the PA is your employee, you're responsible for his acts within the regular scope of his job under the legal doctrine of respondeat superior. If the PA is an independent contractor, you could also be held vicariously liable under the "borrowed servant" doctrine.

In almost every malpractice suit involving a PA, his employer will also be named as a defendant, whether the employer is a physician, hospital, clinic, or health plan. Plaintiffs typically allege that the employer is liable for providing inadequate supervision. So you should be integrally involved in all aspects of treatment. Although you may delegate certain duties to the PA, you haven't delegated the liability.

That said, properly supervised PAs should lower a physician's liability risk. PAs can increase patient satisfaction and compliance because they're trained in taking histories and establishing rapport. There's less chance for things to fall through the cracks, and satisfied patients are less likely to sue.

Physicians must notify their malpractice carrier when they hire a certified health professional. The additional premium is usually a few hundred dollars. The existing policy limits stay in place, even with the extra premium.

If your practice is a professional corporation with more than one physician, most carriers require a separate policy limit for the corporation and for each physician. If you have several PAs, you can always raise your limit for the corporation to take on the additional exposure.

Standard practice is for the PA to have an individual policy as well. In fact, the American Academy of Physician Assistants tells its members, "Don't settle for being insured under your employer's policy. Insist on your own personal policy."

Such a policy entitles PAs to their own defense attorney and protects them if they change jobs or if the employing physician closes his practice before a malpractice claim is filed. It also reimburses these clinicians for time away from work to give depositions, pays for legal fees to defend a professional license before a state agency, and offers access to the insurer's risk-management consultants. A separate insurance policy would also cover the PA for any damages he must pay, whether to a patient or to compensate an employer who has paid for him.

A PA working in a primary care practice generally can buy a $100,000/$300,000 policy for less than $600 a year. Rates and coverage limits are greater for PAs working in higher-risk areas, such as obstetrics, surgery, and cardiac catheterization labs.

Who should pay for the policy? Many physicians offer to purchase the PA's policy as a recruiting incentive or fringe benefit, although it certainly isn't required. No matter who pays for the policy, it belongs to the PA, and the physician's liability remains the same.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2001;15:116.