Whether or not you agree with the movement toward the practice of medicine without direct physician supervision, physician extenders in emergency medicine have become a modern reality. Retail stores such as CVS and Wal-Mart are establishing in-store “walk in” clinics that employ mid-level providers (“MLPs”) who practice without direct physician oversight. In fact, emergency departments across the country have fast tracks run by MLPs.
Scope of Practice
While laws vary by state, several common elements govern the care that an MLP may legally provide. MLPs may perform a history and physical examination, and most states allow MLPs to diagnose medical conditions. Many states allow MLPs to prescribe medicines, including restricted drugs, without requiring a co-signature from a physician, although only a few states grant MLPs prescriptive authority without any physician involvement.
Some states, such as Alaska, New Hampshire, and Washington allow Nurse Practitioners (“NPs”) to practice independently without any oversight by a physician. However, most states require that both NPs and PAs establish a “collaborative agreement” with a physician that spells out the MLP’s scope of practice. The scope of practice contained in a collaborative agreement is subject to state laws and may vary based on the MLP’s experience and knowledge. If the MLP is a member of a hospital staff, hospital bylaws may put additional limits on the MLP’s scope of practice.
MLPs may be individually liable for a bad patient outcome if they exceed their scope of practice. When investigating a claim against a MLP, plaintiff attorneys will often look to the Medical Practice Act in the state in which the MLP is licensed, to any collaborative agreement the MLP has with a physician, to MLP professional organizational guidelines, to any hospital or clinic guidelines, and to the MLP’s experience to determine whether the scope of practice has been exceeded. For example, a newly-licensed MLP who attempts to manage a hypotensive patient with an acute abdomen but who does not seek guidance from his supervising physician may be held liable for exceeding his scope of practice.
In addition to the liability imposed directly on MLPs, physicians may be held liable for the actions of MLPs under several circumstances:
1. Inadequate Supervision
In the states that do not allow MLPs to practice independently, state Medical Practice Acts will require that the MLPs work under the supervision of a licensed physician. For example, in Illinois, the Illinois Physician Assistant Practice Act requires a physician assistant to enter into a collaborative agreement with a physician. The supervising physician must then “direct and review the work, records and practice of the physician assistant on a timely basis to ensure that appropriate directions are given and understood and that appropriate treatment is being rendered.” The Act makes it clear that “the supervising physician shall maintain the final responsibility for the care of the patient and the performance of the physician assistant.”
Physicians may therefore be liable for the actions of a MLP if they are required to supervise the MLP’s actions, but fail to adequately do so. Unfortunately, trial lawyers will often argue that all bad patient outcomes involving a MLP result from inadequate supervision. In addition, physicians may be held liable for overseeing the actions of a MLP whom they have not been authorized to supervise. Co-signing a MLP’s chart without personally evaluating the patient may open a non-supervising emergency physician to such a claim.
Physicians must be careful to observe state law requirements when performing such supervisory roles.
2. Improper Delegation of Authority
Some states require a written description of the authority delegated to MLPs. If a physician delegates too much authority to a MLP based upon that MLP’s education and training, the physician may be subject to liability. For example, in Gillis v. Cardio TVP Surgical Associates (520 S.E. 2d 767), a supervising physician delegated authority to a PA to perform unsupervised vein harvest surgeries. One such surgery ultimately resulted in an injury to a patient. The Georgia Court of Appeals stated that physicians do not have “carte blanche to delegate any and all tasks to an assistant” and held that a jury would have to decide whether a PA had “the requisite skill level and training” to have performed the surgery without supervision.
Vicarious liability is a legal concept that imposes liability on one party for the actions of that party’s agent. In terms of employment, vicarious liability essentially means that employers can be held liable for the actions of their employees. Hospital employers can be liable for the actions of their employed physicians or nurses. Physician employers can be liable for the actions of their office staff. Unrelated entities are generally not vicariously liable for each other’s actions.
It is more difficult to incur liability for non-employed MLPs, although liability may still be imposed under the theory of “apparent agency.” If a non-employee acts in a manner that makes a patient believe that he really is an employee, liability can still occur. For example, if an independent contractor MLP wears a coat containing the physician’s practice logo and introduces himself as “Dr. Welby’s physician assistant,” liability could still be imposed even if the PA was not Dr. Welby’s employee.
While these examples oversimplify the complex topic of agency law, the take home point is that physicians who employ MLPs may be vicariously liable for the actions of the MLP and that, depending on the structure of the group, physician partners in groups employing MLPs may be subject to liability for the negligence of the group’s employees.
4. Informed Consent
Physicians may also be liable when a patient who thought he would be receiving treatment from a physician instead receives treatment from a MLP. Most of these informed consent cases involve surgical cases where anesthesiology or surgical procedures are performed by MLPs without the patient’s approval. Similar cases could arise with emergency department management if the MLP improperly identifies himself/herself as a physician or fails to inform the patient that he/she is a MLP. To minimize the potential for confusion, some state laws require that MLPs wear identification badges clearly identifying themselves and their degrees.
William Sullivan, DO, JD, is the president of the Illinois College of Emergency Physicians
Continue next for a few tips on proxy problems
A few tips and techniques for keeping your mid-level providor malpractice exposure at a safe level
1. Hit the books-
Learn the laws in your state that apply to MLPs.
2. Establish your responsibilities-
Understand your supervising physician duties, and decide if the MLP will work with you or independently depending on his or her scope of practice.
3. Create a proper group structure- Protect individual group partners from incurring liability for actions of group employees. Provide regular performance evaluations and employee education.
4. Avoid informed consent issues-
Instruct MLPs to clearly identify themselves and their professional title to patients prior to engaging in patient care.
5. Confirm insurance-
When available, MLPs should carry adequate malpractice insurance.
6. Weigh new hire benefits-
Compare the risks and limitations of hiring physician extenders with the significant cost savings and increased productivity an MLP can generate.
7. Joining group with MLPs?
Consider the scope of practice the group generally grants to MLPs and whether you are comfortable supervising one or more MLPs in the ED.
8. Reaffirm the team approach-
Be aware and reevaluate the potentials for liability to help to make a team approach to medical practice rewarding for all involved.