Understand the Legal Impact of Physician Extenders

With the shortage of primary care physicians well documented, it’s not surprising to see the dramatic increase in the employment of physician assistants and nurse practitioners.

According to the National Commission on Certification of Physician Assistants, there were approximately 43,500 certified physician assistants at the end of 2003. Over the next 10 years, that figure grew 219% to 95,583.

The numbers are even higher for nurse practitioners. According to the American Association of Nurse Practitioners, there were more than 205,000 nurse practitioners licensed in the US in 2013.

Those physician extenders, the term used to describe a healthcare provider who is not a physician but who performs medical activities that might typically be performed by one, have helped address the healthcare needs of an ever-increasing number of patients.

But, have they opened the door to added legal risks and malpractice?

“It’s a legitimate concern,” says Robin Diamond, MSN, JD, RN, senior vice president of patient safety and risk management for The Doctors Company. “We see a lot of different reasons for the lawsuits that are being filed.”

Growing Concern

Diamond explains that there are several legal principles under which physicians can be sued when using physician assistants and nurse practitioners. One of the top reasons is lack of supervision, or lack of appropriate supervision of the physician extender.

“The major trend we see in those cases is that physicians will hire a mid-level practitioner for their office, and they not totally understand the scope of practice that that mid-level should take on,” Diamond says. “So, the physician will, of course, feel really good about adding a very capable clinician to the office, and then things get dropped.”

In other words, the physician and the physician extender may not sit down and determine the protocol under which the PE should practice. These protocols can differ from state to state, further complicating matters.

What often happens, Diamond explains, is that a patient will have had a procedure performed, or may have been seeing a primary care physician for a medical condition that is worsening. The PE may not recognize the serious nature of the patient’s condition and may make an inappropriate recommendation. As a result, the patient suffers because their medical condition worsens. Sometimes, patients die.

“The midlevel practitioner should either be practicing from a job description as other staff would, or some type of privileging document which is usually used in hospitals,” Diamond says. “There are clear definitions as to what the professional privileges are that can be obtained from the Board of Nursing for Nurse Practitioners, and from the medical associations for physician assistants within each state.”

Value of Education

Diamond says that she and her colleagues spend a great deal of time with the physicians and the medical staff, including PEs, who they insure to educate them about the different types of claims that might occur.

“Sometimes there’s a failure to understand the difference between these practitioners,” she says. “The physician can’t just rely on the practitioner to take their place. There has to be an understanding of what type of patient the physician can assign them, and at what point within the care of a patient that mid-level needs to call on the physician to intervene and work with the patient directly.”

When the skills of a PE are used appropriately, Diamond says the risk and exposure to medical malpractice can actually be reduced. The practice’s financial status can also be improved.

“It’s a huge benefit if [PEs] are used appropriately and statutory regulations are followed,” Diamond says. “On the other hand, if they’re not utilized appropriately, there’s a much greater risk.”

Going Forward

All trends indicate that the use of physician extenders will continue to grow in direct proportion to the shortage of primary care physicians. The AANP indicates there are an additional 14,000 nurse practitioners currently completing their training. But as Diamond points out, the training doesn’t end there.

“We are really ramping up our education of physicians, as well as offering guidance to the midlevel practitioners,” Diamond says. “We have webinars to educate physicians and their staff about the risks that we see related to various claims, and a lot of published materials that we distribute.”

But, she says, the situation is not one of gloom and doom. More so, it’s about awareness.

“Physicians need to understand how important it is to be clear on the front end about roles,” she says. “Quality and patient safety are important topics. And when [PEs] are used properly, it can make patient care better and safer.”