THE NEW GENERATION OF PROVIDERS

NPs and PAs: What's the malpractice risk?

When properly supervised, physician assistants and nurse practitioners should reduce your malpractice risk. "Properly supervised"—ah, there's the rub.

By Mark Crane
Senior Editor

Will hiring a physician assistant or nurse practitioner increase or decrease your risk of being sued for malpractice?

Judging from the actual number of malpractice cases settled, PAs and NPs are in court much less often than their doctor colleagues. But before you launch a recruitment effort, bear in mind that there are many more PAs and NPs practicing today than just a few years ago, and lawsuits take a while to reach the courts. In theory, however, both the AMA and allied health organizations agree that properly supervised PAs and NPs should lower a physician's liability risk.

Why? "Most lawsuits are filed because of a lack of communication, a lack of basic follow-up," says Judith A. Berman, an attorney and RN in Phoenix. "Midlevel providers are trained to do a better job taking histories and establishing rapport. When they're employed correctly, there's less of a chance for things to fall through the cracks." They also increase patient satisfaction by reducing office waiting time and devoting more attention to patients—and a satisfied patient is less likely to sue. As an added bonus, these providers allow the supervising physician time to concentrate on more complicated cases.

Other experts, though, warn physicians against allowing too much autonomy. "In the past three years, I've filed five cases against physicians because of faulty performance by a midlevel provider," says Evelyn W. Bradford, a plaintiffs' attorney in Waynesboro, PA. "In each case, the provider made significant decisions on his own without consulting the doctor, who often didn't even know of a problem until the summons was served."

Professional liability insurers caution that claims could increase as more practices employ PAs and NPs. "The number of suits isn't disproportionate yet, but we're seeing an occasional instance of midlevel providers practicing beyond their level of expertise," says Richert E. Quinn, a general surgeon and vice president of risk management for Copic Insurance Co., a Colorado-based malpractice carrier. "We're seeing more adverse outcomes—especially delayed or missed diagnoses of cancer and heart attacks, and prescribing errors.

"A PA or NP may watch a palpable breast lump for months without alerting the doctor, and it could turn out to be cancerous," says Quinn. "One PA missed a diagnosis of flesh-eating bacteria. The danger occurs when providers don't recognize when they are practicing beyond their training. Even with appropriate supervision, mistakes will still occur, but they can be minimized. The provider has to know his limitations and when to ask for help."

Consider these recent lawsuits, attributable to haphazard supervision by doctors:

• A 2-year-old boy with a high fever and upper respiratory infection was seen by a PA. X-rays confirmed the PA's diagnosis of pneumonia in both lungs. The boy's parents wanted him hospitalized, but instead the PA prescribed antibiotics and sent the family home. The next morning, the boy went into acute respiratory failure and died before he could be brought to the hospital.

"The experts I consulted felt he should have been hospitalized right away and started on IV antibiotics," says Evelyn Bradford, who represents the child's parents. "Nurses at the hospital could have spotted the earliest signs of respiratory distress. Sending the child home deprived him of his only chance. The doctor employer was completely out of the loop; the PA never contacted him." And the doctor evidently didn't check on what his PA was doing. The case was settled for an undisclosed amount.

• In a Wisconsin case, physicians discovered a heart murmur during a routine physical on a 45-year-old man. An ECG revealed a bicuspid aortic valve and mild to moderate regurgitation. No one warned the patient that, because of the increased risk of infection, he should be given prophylactic antibiotics prior to dental procedures. Shortly after a root canal, the patient developed flu-like symptoms. He was seen by a PA, who noted his cardiac and dental history in the chart. The patient's health deteriorated over the next two months, but the doctor—who later said his custom was to review only the patient's chief complaint and the PA's recommendations—didn't read the chart carefully enough. He should have seen that the patient was at risk for bacterial endocarditis. A wrongful-death suit was settled for $1.2 million.

In each case, the supervising physician was sued along with the PA. "The physician is liable for reviewing all pertinent information when authorizing an NP or PA's treatment plan," says Lee J. Johnson, an attorney in Mount Kisco, NY. "You may delegate the history-taking to one of these providers, but you haven't delegated the liability."

Creating a composite of several cases she's seen, attorney Judith Berman illustrates how easily disastrous missteps can occur. "While you're on vacation, the NP or PA sees a longtime patient for URI symptoms that could be viral or bacterial. The patient insists on an antibiotic. The midlevel provider is unable to find the chart because the patient was worked into the schedule at the last minute. She asks the patient about allergies, documents NKDA, but doesn't get a full medication history. She writes a prescription for trimethoprim-sulfamethoxazole, and your partner signs off on the chart on his way out the door to the ER. The patient—who, it turns out, is allergic to sulfa drugs—dies four days later of pseudomembranous colitis. You, your partner, your corporation, and the NP/PA are hit with a wrongful-death suit."

The doctor's liability is clear

In nearly every malpractice lawsuit involving an NP or PA, the physician, hospital, health plan, or clinic that employs the provider will also be named as a defendant, says Nancy Hughes, vice president of communications for the American Academy of Physician Assistants. "It's rare to see a lawsuit where the NP or PA is the only or even the prime defendant. Plaintiffs typically allege that the physician is liable for providing inadequate supervision."

The scope of each profession's practice is dictated by state law, and the variance can be significant. Every state but Mississippi requires that doctors supervise PAs, and many states require NPs to work in collaborative relationships with doctors. Some states mandate that NPs follow detailed clinical protocols, and there may be rules regarding physician accessibility, chart reviews, and conferencing. States also might regulate the number of PAs a physician can supervise.

If you're thinking about adding an NP or PA to your practice, ask your state medical board about diagnosing and prescribing rules, and the amount of supervision needed. AAPA (www.aapa.org) publishes a summary of state laws governing PAs. Similarly, the Web site of the American Academy of Nurse Practitioners (www.aanp.org) has a chart depicting prescriptive authority for NPs.

If the NP or PA is your employee, you're responsible for her acts within the regular scope of her job under the legal doctrine of respondeat superior, says attorney Lee Johnson. You could also be held vicariously liable under the "borrowed servant" doctrine for providers who work for you as independent contractors. That might occur if the patient reasonably believes that the PA or NP is acting as your agent or employee.

NPs typically have a formal collaborative arrangement with physicians. As such, the physician commits to a certain level of supervision, which usually requires at least periodic review of records and ongoing consultation. A doctor could be considered liable if he reviews a patient's case but fails to make medically reasonable recommendations, says Johnson.

Occasionally, an NP or PA might be found liable while her supervising physician is exonerated. That occurred recently in a case involving a rural health clinic in the South. Both the NP and physician were employees of the hospital that owned the clinic, says Karen Everitt, risk management consultant for Medical Assurance, a malpractice insurer based in Alabama. A young woman presented with abdominal cramping, nausea, and vomiting. An NP diagnosed gastroenteritis and instructed the patient to seek follow-up care if the symptoms recurred or worsened. No lab work was performed. The patient was never seen by the supervising physician, but he signed off on the patient's chart when he reviewed it that day.

Two days later, the patient died. An autopsy revealed peritonitis secondary to a ruptured appendix. The family sued the clinic, physician, and NP. They alleged negligent supervision by the doctor and said that he should have personally examined the patient. The jury found the clinic and NP liable and awarded $1 million, but it cleared the doctor. "Apparently the jury felt it wasn't an issue of supervision, but more of an NP's using poor judgment in not seeking the collaborating doctor's help," says Everitt.

Supervise seriously, or pay the price

Be sure to check the credentials of the provider you're considering hiring. Call the relevant state licensing board or professional association, and verify that the applicant graduated from an accredited program. "Both physicians and malpractice insurers can do a better job on this," says Richert Quinn. "We may see an increase in lawsuits against physicians for hiring midlevel providers without the proper credentials."

The biggest malpractice risks occur when PAs or NPs practice beyond their level of training and wait too long to contact the physician. "Remember, these providers are supposed to extend, and not replace, a physician's services," says Quinn.

"The entire relationship between the doctor and other health providers should be clearly spelled out with a written job description and practice protocols that indicate the type of patients to be seen and the level of treatment to be provided," advises Judith Berman. "Tell the PA or NP how you see her role. Define what conditions and complaints are appropriate for first-level care, and when she must send the patient back to you or a specialist. A provider who doesn't know her limits, or fails to provide care within those limits, is no asset to your practice."

The tendency, however, has been for states to broaden the scope of NP and PA authority—a development that makes some doctors nervous. Recently, doctors in Michigan staged an unsuccessful attempt to halt implementation of a new rule that allows PAs and NPs to prescribe Schedule II controlled drugs.

"Direct liability could be imposed upon the physician for delegating the prescribing of controlled substances when the physician either knew or should have known that the midlevel provider wasn't properly trained to prescribe such drugs," says Richard D. Weber, the society's legal counsel. Any claim asserted by a patient arising out of the prescribing of a controlled substance will almost certainly be filed against the delegating physician, he adds. "We're not anti-PA or anti-nursing, and we're not opposed to a provider dispensing routine medications at the instruction of the doctor," says Weber. "But prescribing controlled substances is riskier."

The society was especially concerned because Michigan doesn't require a physician to be at the same site as the PA or NP on a regular basis. "The definition of supervision is extremely broad," Weber says. "Technically, a doctor could be said to be supervising while he's vacationing on the beach in Hawaii. That clearly isn't acceptable."

Don't penalize a provider for seeking help

The most self-defeating thing a doctor can do is create an atmosphere where the NP or PA is afraid to pose questions or ask for assistance, says Richert Quinn. "In most practices we see, these people are employed wisely with appropriate supervision. But we know of situations where they are essentially on their own. The doctors don't realize that they're exposing themselves to lawsuits."

One PA who practices in the Northeast tells this cautionary tale. "My first job after finishing my training was in a hospital emergency room," says the PA, who asked not to be identified. "I basically didn't know how to swim yet, but they threw me into the deep end of the pool and told me I was the lifeguard. The doctors, who also were under tremendous pressure, bitterly complained when I asked questions or wanted them to examine patients. It was terrifying. If I kept asking for help, I was afraid I'd be fired. When I didn't seek help, I was afraid of injuring a patient or missing some serious problem. I quit that job as soon as I could."

The situation wasn't helped by the fact that patients often assumed the PA was a physician. "They kept saying, 'Okay, Doc.' I'd correct them, often to no avail." That confusion—and feeling tricked—can lead a patient to a plaintiffs' attorney. "Doctors need to educate patients about the PA's role," says Evelyn Bradford. "When the receptionist says, 'The doctor is all booked up, but the physician assistant can see you at 2 pm,' it should be made clear that the assistant isn't a doctor."

Some invasive procedures by NPs and PAs require formal informed consent documenting who is performing the procedure. "This isn't being done as rigorously as it should be," notes James Lewis Griffith Sr., a malpractice attorney in Philadelphia. "If something goes wrong, the patient is likely to argue, 'I never would have consented to this if I'd known a nonphysician was doing it.' This could be an area of increased risk for physicians."

AAPA's Nancy Hughes says many states mandate that PAs identify themselves as such. Some jurisdictions even require name tags to drive the point home.

Who provides malpractice insurance for PAs and NPs?

Since physicians are primarily liable for the actions of their employees, they must notify their malpractice carrier when they hire a certified health professional. "The premium is fairly nominal," says Copic's Richert Quinn. "We might add an extra $1,000 to the doctor's malpractice premium if the PA or NP assists during surgery or works for a doctor in a high-risk specialty. But this is a shared limit. So if the doctor is insured for $1 million per incident/$3 million aggregate, the same policy limits apply."

But many PAs and NPs insist on having an individual malpractice policy. Such a policy entitles them to their own defense attorney and protects them if they change jobs or 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 experienced risk-management consultants.

AAPA offers a $100,000/$300,000 policy through its own liability program for PAs who work in primary care. The cost is generally less than $600 a year; rates and coverage limits are higher for PAs working in high-risk areas such as obstetrics, surgery, and cardiac catheterization labs. Some physicians offer to purchase the provider's policy as a recruiting incentive. No matter who pays for the policy, though, the physician's liability remains the same, notes Quinn.

Whether a PA or NP is a major asset—or a major liability—to a practice ultimately depends on the supervising physician. "If you're just looking to increase your income by hiring a PA or NP and you don't want to spend time working with her, that's very ill-advised," says family physician Dewayne P. Darby, who has two physician assistants in his four-doctor Jefferson City, TN, practice. "Besides the liability risk, your patients won't be happy with that kind of relationship, either."

Mark Crane. NPs and PAs: What's the malpractice risk?.

Medical Economics

2000;6:205.