Positive Outlook – Jan 2013-2

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Positive Outlook – Issue 1.0 – Jan 2013

Malpractice Risks With NPs and PAs in Your Practice
The growth in the number of physician assistants (PAs) and nurse practitioners (NPs) has been enormous and is likely to intensify. This trend will have a dramatic impact on physicians, whether employed or in private practice, in terms of both liability issues and day-to-day practice. Thanks in part to the looming doctor shortage and the Affordable Care Act, which will ultimately allow 30 million Americans to acquire health insurance, these midlevel providers will be treating more and more patients and performing services that were formerly the exclusive province of physicians.

There are currently about 85,000 certified physician assistants across the country, an increase of more than 100% over the past 10 years, according to the American Academy of Physician Assistants (AAPA). PAs can prescribe in all 50 states but must work under the supervision of a doctor.[1]

There are about 155,000 NPs nationwide, up from 111,000 in 2003, according to the American Academy of Nurse Practitioners. The vast majority of NPs work in primary care practices or for clinics and hospitals under a physician’s supervision. In 18 states and the District of Columbia, NPs can practice without a physician’s direct involvement but may need a formal collaborative arrangement with a doctor.

These allied health professionals earn an average of almost $90,000 a year. State laws vary greatly on what they are permitted to do and the level of supervision required by physicians.

Why Midlevels Are Usually Sued Midlevel providers and their employers are typically sued for inadequate supervision or when the PA or NP practices beyond the scope of their training.

“Doctors need to remember that while you can delegate a task, you haven’t delegated the liability,” said Robin Diamond, RN, JD, Senior Vice President and Chief Patient Safety Officer for The Doctors Company, a liability insurer based in Napa, California. In one example, a child presented at a pediatrician’s office with fever, sore throat, and some pain, said Diamond. An NP prescribed an antibiotic and asked the mother to call back if there was no improvement. A couple of days later, the mother reported the pain was getting worse. The NP changed the antibiotic. Within 48 hours, the girl was in the emergency department (ED), diagnosed with meningitis.

“The case raises serious questions,” Diamond said. “Why would the NP feel it was within her scope of practice to prescribe a new drug without asking the physician? When is it appropriate to call the doctor? Was he reviewing her notes? Why wasn’t there more communication? We see this pattern repeated over the years.”

In another case, a patient presented to the ED with a fracture that was misdiagnosed by the PA. “The patient never saw the physician, and he didn’t even know the patient was in the hospital,” said Craig P. Sanders, a malpractice defense attorney with Rainey Kizer Reviere & Bell in Jackson, Tennessee. “A 2010 decision by the Tennessee Supreme Court held that a supervising physician can be held vicariously liable for the negligence of his or her PA even if the physician never saw or treated the patient. This means that the doctor may automatically be held liable if the PAis found to have been negligent.” A third example: A 41-year-old woman with vaginal bleeding and abdominal pain went to an independent NP family practice clinic. In each of 6 visits over a 4-month period and despite worsening symptoms, the NP attributed the symptoms to a variety of benign causes.

The collaborating physician was never consulted. However, she cosigned the NP’s notes. She and the NP were named as codefendants in the malpractice suit after the patient died of endometrial cancer. “The NP’s failure to consult with or refer the patient to the physician was the primary issue identified by defense experts. The physician was held liable for having signed notes she never read and for having inadequate practice policies in place for the NP,” according to a continuing medical education presentation by the Massachusetts Medical Society and ProMutual Group, a liability carrier.[2]

Midlevels and Liability Risk

How will the growth in the number of PAs and NPs affect your liability risk?

Some experts say that midlevel providers lower malpractice risk because they spend more time with patients, especially on follow-up, and score higher in patient satisfaction ratings.

“We often see claims because patients are dismissed too quickly, before their questions can be answered,” said Robin Diamond. “NPs and PAs do spend more time with patients. When they are appropriately supervised, that helps build relationships and lowers liability risk.”

On the other hand, some attorneys and physicians argue that midlevels don’t have the same extensive training as physicians and often practice beyond their areas of expertise. “Whenever a midlevel is sued, you can be sure that the supervising physician will be sued as well,” said Craig Sanders.

“Courts have held that the midlevel is an agent of the physician, who can be held vicariously liable for negligence even if he never saw the patient,” he said. “Physicians don’t realize the extent of supervision necessary to keep the liability risk low.”

What’s the actual experience? Numerous studies have shown that midlevels are far less likely than physicians to be sued. When they are sued, the awards and settlements are much smaller than for cases involving physicians, according to Ellen Rathfon, senior director of professional advocacy for the AAPA.

The most extensive study on the issue was conducted in 2009 by researchers for the Federation of State Medical Boards, which looked at claims filed from 1991 to 2007 with the National Practitioner Data Bank.[3] “Seventeen years of observation suggest that, if anything, PAs and NPs may decrease liability, at least as viewed through the lens of a national reporting system,” the authors wrote. “During that period, there was 1 payment for every 2.7 active physicians, 1 for every 32.5 active PAs and one for every 65.8 active and inactive advance practice nurses. In percentage terms, 37% of physicians, 3.1% of PAs and at least 1.5% of APNs [advance practice nurses] would have made a malpractice payment. The physicians mean payment was 1.7 times higher than PAs and 0.9 times that of APNs, suggesting that PA employment may be a cost savings for the health care industry along with the safety of patients.”

“From a policy standpoint, it appears that the incorporation of PAs and APNs into society has been a beneficial undertaking and liability has not increased, at least compared to doctors,” the authors concluded.

Still, cases involving midlevels are likely to grow along with the number of practitioners. “The increased numbers of PAs may result in increasing numbers of claims per year, but we do not anticipate a change in the relative liability risk of PAs because the profession’s team-based model of care is not changing,” said Ellen Rathfon of AAPA.

How to Lower Your Risk When Working With PAs and NPs

There are several steps physicians should take to lower their malpractice risk, say insurers and attorneys.

Notify your malpractice carrier when hiring a midlevel. “Doctors who change their practice by hiring an allied health professional are required to notify the carrier,” said Robin Diamond. “The premium will be increased,” but nominally — often by less than $2000.

Both the AAPA and the American Academy of Nurse Practitioners urge their members to maintain independent policies in addition to whatever coverage the employing physician provides. “We know that 98% of practicing PAs have liability insurance coverage and that 97% of employers pay the cost of that coverage,” said Ellen Rathfon of AAPA. Verify credentials. Call the relevant state board or professional association to verify that the applicant graduated from an accredited program and has an active license. Query the National Practitioner Data Bank. Perform a criminal background check and contact all references, risk managers advise.

Have written protocols. Most states require some form of written protocols to define the role of the midlevel. They can vary greatly. “We like them to be as specific as possible to cover the main types of cases the midlevel will see,” said Robin Diamond. “If a lawsuit occurs, it can be easily seen if the PA or NP was paying attention to the right thing.” Some attorneys disagree about the level of specificity required. “It isn’t clear that you need written protocols on each clinical situation, such as headache,” said attorney Craig Sanders. “The more detailed you get, the more you can set yourself up to lose in court. You may find that you didn’t always comply exactly with the guideline. Each patient is different. I’d be reluctant to advise a lot of detail about how to treat specific conditions.”

Supervise appropriately. What a PA or NP is permitted to do varies widely from state to state. “Supervision can mean being in the same room or a few miles away, depending on the state,” said Robin Diamond. “Make sure you comply with the regulations,” said Craig Sanders. “Some may say you have to review 20% of the PA’s charts every 30 days. Doctors should go above and beyond the minimum requirements.”

Create a culture that encourages questions. “We favor weekly meetings,” said Diamond. “Make sure the midlevel knows that questions are welcome.” Craig Sanders agrees. “Because physicians can be held liable for what the midlevel does, it’s imperative that doctors have a good comfort level about their work. They should take a role in their educational development and let them know that whenever they are in doubt, they should talk to the doctor and won’t ever be criticized for asking too many questions.”

A $217 Million Malpractice Case Involving a PA

The second-largest malpractice award in US history focused directly on how a medical practice credentialed and supervised a midlevel provider. Although the facts in the cases are unique, they can provide lessons for all physicians who work with PAs.

In 2007, a jury in Tampa, Florida, awarded $217 million, including $100 million in punitive damages, to a man whose cerebellar stroke was misdiagnosed as sinusitis at a hospital ED in 2000. The then-44-year-old mechanic presented with headache, nausea, dizziness, confusion, and double vision. He had a history of hypertension, diabetes, and elevated cholesterol and had a family history of stroke.

A midlevel provider ordered blood tests and CT without contrast, which were approved by the ED physician. Both were employed by a medical group that contracted with the hospital to run the ED. The first CT scan was negative for stroke, as was a second one done a few hours later with contrast. The ED physician didn’t repeat the examination, history, or neurologic assessment. Instead, he relied on the extender’s findings to diagnose “sinusitis/headache,” the lawsuit said. The doctor prescribed a painkiller and an antibiotic and discharged the patient.

The next morning, the mechanic awoke with a severe headache, slurred speech, nausea, confusion, and trouble walking. He returned to the ED. A new CT scan showed that he had had a stroke. A shunt was inserted into his brain to relieve intracranial pressure, but the damage was irreversible. The man was left paralyzed and with mental disabilities. He remained in a coma for 3 months and spent the next 6 months at care facilities. He remains paraplegic.

The lawsuit alleged that the patient presented with classic stroke symptoms that the ED doctor should have detected. The crucial part of the trial involved the midlevel provider. It took 16 months before the medical group revealed his name, describing him only as an “expediter” who served as a note-taker, or scribe, to help the ED doctors. When lawyers deposed him, they learned that he was an unlicensed PA, having failed the state licensure test for PAs 4 times. He denied during depositions that he performed patient examinations.

The ED physician testified that he’d assumed the midlevel was a licensed PA and that he didn’t need to redo the history and examination. The doctor and his medical group blamed each other. The doctor said he would have redone the examination if he’d known that the expediter was unlicensed. The medical group’s leader said it was the doctor’s responsibility to ask the expediter about his status.

There had been no written guidelines for what the midlevel provider was authorized to do. “This group created this system that was ripe for mishap, to push more people through the ED so they could increase profits,” said plaintiff’s attorney David Dickey. “Instead of hiring a real PA or another ED doctor, they used the midlevel to save money.” The jury was clearly outraged, finding that the group had tried to conceal the midlevel’s involvement from the plaintiffs and placed profits over patient safety.

Lawsuits involving midlevel providers are likely to grow as their numbers expand and their scope of practice increases owing to pressure from the doctor shortage and the Affordable Care Act. They can provide a tremendous benefit to your practice — if you follow established protocols about supervision, say risk managers.

References

1. Academy of Physician Assistants. Fast-growing physician assistant workforce ready to meet healthcare demand. October 5, 2012. http://www.aapa.org/news_and_publications/news/item.aspx?id=5187 Accessed November 20, 2012.

2. Massachusetts Medical Society; ProMutual Group. Nurse Practitioners and Physician Assistants: Some Risk Management Concerns. http://www.massmed.org/AM/Template.cfm? Section=Home6&CONTENTID=13017&TEMPLATE=/CM/ContentDisplay.cfm Accessed November 14, 2012.

3. Hooker R, Nicholson J, Tuan L. Does the employment of physician assistants and nurse practitioners increase liability?Journal of Medical Licensure and Discipline. 2009;9:6-16. http://www.paexperts.com/Nicholson%20-% 20Hooker%20Article.pdf Accessed November 11, 2012.

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Cite this article: Malpractice Risks With NPs and PAs in Your Practice. Medscape. Jan 03, 2013.