Managing Risk in the Physician-Advanced Practice Professional Relationship
CME Information
Sponsored by: The NORCAL Group of companies includes NORCAL Mutual Insurance Company, along with its subsidiary companies Medicus Insurance Company, FD Insurance Company, NORCAL Specialty Insurance Company and its affiliate Preferred Physicians Medical RRG.
NORCAL Mutual Insurance Company is accredited by the Accreditation Council for Continuing Medical Education to provide continuing medical education for physicians.
For questions, please call the Risk Management Department at 855.882.3412.
Method and Medium
To obtain CME credit, read the article then take the quiz and fill out the evaluation form. You can print or email your CME certificate from this application.
Please complete and submit the online quiz by the expiration date indicated below:
Original Release Date: December 15, 2017
Expiration Date: January 1, 2020
Learning Objectives
By reviewing medical professional liability claims and/or emerging topics in healthcare risk management, this enduring material series will support your ability to:
Assess your practice for risk exposures.
Apply risk management best practices that increase patient safety and reduce medical professional liability claims.
Target Audience
Physicians, healthcare staff and administrators.
Credit Designation Statement
NORCAL Mutual Insurance Company designates this enduring material for a maximum of 1 AMA PRA Category 1 CreditTM. Physicians should claim only the credit commensurate with the extent of their participation in the activity.
Disclosure Policy
As an ACCME accredited provider, NORCAL Mutual Insurance Company requires planners, reviewers or authors who influence or control the content of a CME activity to disclose financial relationships (of any amount) they have had with commercial interests associated with this CME activity during the year preceding publication of the content.
Any identified conflicts of interest are resolved prior to the commencement of the activity.
Disclosures
Individuals involved in the planning, reviewing or execution of this activity have indicated they have no relevant financial relationships to disclose.
Multiple studies indicate that advanced practice professionals (APPs) can increase patient satisfaction and quality of care.1
Additionally, APPs (e.g, nurse practitioners, physician assistants, certified registered nurse anesthetists, nurse midwives and clinical nurse specialists) can increase physician job satisfaction and improve the bottom line by relieving physicians of routine tasks.2 However, if physicians and APPs do not thoughtfully consider their individual responsibilities in this increasingly collaborative healthcare environment, patient injuries and medical malpractice claims will most likely increase.3
Different combinations of scope of practice and standard of care issues underlie most NORCAL Group closed claims involving APPs. Liability allegations involving APPs are often directed at both the supervising/collaborating physician and the APP. If an APP deviates from the standard of care while providing treatment to a patient, the malpractice analysis relative to that deviation will be the same as it would be for a physician—the plaintiff must prove that the APP had a duty towards him or her, that the duty was breached and that the breach caused the patient's injuries. An injured patient may also allege a physician negligently supervised, hired and/or credentialed the APP. Physicians may also be vicariously liable for the negligence of an APP by virtue of the APP being employed or supervised by the physician.
Care rendered by APPs that violates laws or regulations may result in allegations of "negligence per se" (i.e., that an act or omission-failing to have a written list of delegated duties for the APP, failing to be available for consultation-was negligent by virtue of its violating a statute or regulation), which, if proven, can severely compromise the ability to defend a liability claim. Additionally, physicians and APPs who violate state laws and regulations that limit APP autonomy in various ways (e.g., prescribing privileges, physician oversight, collaboration/supervision ratios) expose themselves to discipline by their respective professional licensing boards,4 which can include license suspensions, revocations and fines.3
(The APPs most commonly involved in NORCAL Group claims are physician assistants (PAs) and nurse practitioners (NPs); therefore, this article focuses on them. However, the risk management and patient safety recommendations introduced can be applied to practice arrangements between physicians and other APPs.)
There is no universal APP scope of practice. It is defined by a complex array of overlapping and often contradictory state and federal statutes and regulations, nursing and medical board position papers, reimbursement guidelines and insurance requirements.1,4 In all states, PAs treat patients subject to physician delegation and supervision. NP practice, although it may entail the same duties as PA practice, is considered distinct from the practice of medicine.1 Some states allow NPs to practice autonomously, while others require collaboration with a physician.
State medical and nursing boards and professional societies can be excellent resources for obtaining information about scope of practice laws. Additionally, summaries of scope of practice laws can be accessed from various organizations online. For example:
NP Scope of Practice Law Summaries
"Interactive Nurse Practitioner (NP) Scope of Practice Law Guide" Last Updated: 3/14/2017 www.bartonassociates.com/... (accessed 10/30/2017).
PA Scope of Practice Law Summaries
"Interactive PA Scope of Practice Law Guide" Last Updated: 10/04/2017 www.bartonassociates.com/... (accessed 10/30/2017).
It is important for physicians and APPs to be familiar with scope of practice laws and to closely scrutinize any contracts, collaborative agreements or other documents that govern their roles and responsibilities.
This issue of Claims Rx presents case studies based on NORCAL Group closed claims to illustrate how inadequate oversight of APPs and over-delegation of duties can increase the risk of patient injury and malpractice liability.
(It is beyond the scope of this article to provide specifics for the varied APP laws. Discussion of state law in the case studies presented is for illustrative purposes only. Risk management recommendations following case studies are intended to be applicable to practice in all states and are not specific to the state mentioned in the case study.)
Professional Liability Coverage
Subject to its terms and conditions, NORCAL professional liability policies often provide liability coverage to supervising/collaborating physicians for the actions of a variety of APPs for whom physicians are legally responsible. NORCAL's specific underwriting guidelines and requirements must be met, however, before coverage is provided and APPs are endorsed onto a physician's or entity's policy. Independently practicing APPs should obtain their own liability coverage. Contact Underwriting with questions about coverage requirements at: 844-4NORCAL.
Collaboration Confusion
Some states describe APP scope of practice generally, and some define it specifically. In the following case, which took place in Alabama, a major issue was whether the NP exceeded his scope of practice when he attempted to diagnose a lesion on the patient's thigh. Alabama has very specific scope of practice, supervision and quality assurance regulations for physicians and NPs working in collaboration. During litigation it became clear that neither the NP nor the physician were aware of the detailed regulations by which they were supposed to be collaboratively practicing. During their depositions, it also became clear that the plaintiff's attorney was not only well-versed in these regulations, but also intended to use their failure to comply against both the physician and NP. Finally, the medical record documentation was so poor it complicated the defense of the case. Consider the various ways inadequate collaboration complicated the defense of both defendants.
Case One
Allegation:
The NP negligently failed to diagnose melanoma due, in part, to negligent physician oversight.
The following case study is presented from the perspectives of the various parties to the lawsuit. The different stories illustrate: 1) how inadequate medical record documentation can complicate the defense of a malpractice claim when the patient and clinician have different recollections of the healthcare encounter; 2) how different parties to a collaborative agreement can have different understandings about their roles in the relationship; and 3) how important it is for physicians and APPs to understand supervision/collaboration laws.
Background Information
An NP approached a family practice physician (FP) with a request for the FP to be his collaborating physician. He offered the FP a set monthly fee and free office space in exchange for collaborating with him. The NP described the physician collaborative duties as reviewing 10% of the NP’s office visits records and being available for consultation when necessary. The NP assured the FP that the office manager would take care of all of the paperwork associated with their collaborative practice.
After the FP agreed to be the NP’s collaborating physician, the NP presented the FP with a collaborative agreement. The NP told the FP that the collaborative agreement was the same agreement he had used with his prior collaborating physician. The FP assumed the agreement met any necessary legal requirements. The FP also assumed the NP had the appropriate training and experience necessary to examine a full roster of family practice patients. The NP's credentials were never discussed. At the time of the lawsuit, the FP and NP had been working together for five years.
Medical Record Documentation
The entirety of the documentation of the treatment at issue in this case was included in the July 15, 2014, progress note for an office visit with the NP:
Atypical lesion R thigh
Benign on biopsy
Cryotherapy
The NP had no independent recollection of any of the patient's visits. His testimony at deposition was based on the documentation above and his standard practice. The FP had no personal contact with the patient and had not reviewed the patient's medical record at any time prior to the beginning of litigation. The patient testified very clearly about her recollection of the interaction with the NP. The NP's and patient's testimony about their interactions had significant inconsistencies, including the patient’s recollection of a prior appointment with the NP during which a punch biopsy was taken of the lesion. The NP testified that she did not do a biopsy, and there was no record of a prior appointment or of a biopsy sample being sent to pathology.
Nurse Practitioner Testimony
On July 15, 2014, the patient came in for a blood pressure medication refill. She showed the NP a lesion on her right thigh, which he treated with liquid nitrogen. There had been a prior biopsy, but no results were available. The NP had no recollection of the size, shape or color of the lesion. He would have described it in the medical record if the lesion was highly irregular, misshapen, non-healing or suspicious. If it had been any of these things, the NP would have biopsied it and/or referred the patient to a dermatologist. He did not biopsy all lesions he described as "atypical."
Although the NP was required to follow protocols contained in a particular dermatology text, pursuant to the collaborative agreement, he could not recall if he had done so in this case, and admitted that he rarely consulted this text. The NP had received no formal training in the identification of skin lesions. He taught himself how to identify which lesions were benign, which needed to be biopsied and which patients needed to be referred to a dermatologist. He had never discussed his lack of training in dermatology with the supervising FP.
The NP assumed the FP was reviewing an appropriate selection of the NP's patient records. He and the physician had never discussed how the record review was conducted. The FP had never questioned the NP's treatment as a result of record review; therefore, the NP assumed the FP did not find any issues in the records that necessitated discussion. The NP felt the FP was appropriately available for consultation and estimated he requested consultation on 2-3% of cases. He had never requested the FP's consultation on the diagnosis or treatment of a skin lesion.
Family Practice Physician Testimony
The FP's understanding of her responsibilities as a collaborating physician was based on a packet of information provided to her by the NP at the beginning of their relationship, which she had reviewed at that time. She had not reviewed the collaborative agreement since she originally signed it. However, during the litigation process, she realized the collaborative agreement had been revised by the NP without her knowledge.
The FP believed she was required by law to review the progress notes from 10% of the NP's patient encounters. (This was not a correct interpretation of the state law.) The medical assistant (MA) chose the records for her to review. Why particular records were chosen by the MA was not known to the FP. She cosigned the records that she had reviewed, but did not otherwise record which records had been reviewed. She had found no problems in the NP's progress notes in their five years of collaborative practice.
The FP assumed the NP was competent to treat patients based on the NP's education and experience. She further assumed the NP's training qualified the NP to determine which lesions should be biopsied and which should not. However, she admitted that she referred patients with atypical lesions to a dermatologist and she always biopsied lesions before doing cryotherapy.
Patient Testimony
In April 2014, the patient asked the NP to look at an oddly shaped freckle on her thigh that had darkened and grown larger over the past few months. The NP did a punch biopsy and told the patient he would let her know if it was abnormal. The patient then made the July 15, 2014, appointment with the NP because the freckle kept getting bigger, darker and uglier, and she wanted to get it removed. The patient never asked about the biopsy because the NP said he would tell her if it was abnormal. During the July 15 appointment, the NP told the patient that the freckle was a wart, and burned it off with liquid nitrogen. About two months after the cryotherapy, the wart/freckle started to come back. In August 2015, the patient went to a different physician who did a shave biopsy. The diagnosis was melanoma.
The patient sued the FP and NP alleging negligent failure to diagnose cancer. She further alleged that diagnosing skin lesions was outside of the scope of practice of an NP, that the FP negligently supervised the NP and that both of them violated various parts of the Alabama medical practice and nursing codes.
In Alabama, NPs practice under the collaborating physician's medical license.5 The physician has ultimate responsibility for the patient care rendered by the NP. The physician is also responsible for assuring that the NP's activities are within the scope of the NP's training and experience, and that the care rendered by the NP is within the standard of care.6 The issue of whether the scope of the NP's practice included the diagnosis and treatment of skin lesions was a central issue in the case. Alabama law requires that the collaborative agreement include a formulary of drugs, devices, medical treatments, tests and procedures that could be prescribed, ordered, and implemented by the NP.7 Diagnosing and treating skin lesions was not listed on the collaborative agreement, where it ostensibly should have been. The plaintiff's experts argued it was not within an NP's scope of practice; defense experts argued it was.
Alabama law also requires documented "medical oversight" and "quality assurance" by the collaborating physician. The details of these requirements are set forth in the statute. The law specifically states, "The physician's signature on the patient record does not constitute quality improvement monitoring."8 Consequently, despite the NP's assurances that their collaboration was consistent with the legal requirements in the state, it was not even close to adequate. The physician's testimony in defense of the negligent oversight allegations - that she cosigned 10% of the office visit records and made herself available for consultation - clearly did not satisfy the regulatory requirements.
Furthermore, the documentation in this case indicates that the NP’s medical record documentation practice was seriously inadequate. The FP's ability to judge the quality of the NP's patient care based on this level of documentation was questionable.
Although it was not an aspect of the plaintiff's case against the FP, the deposition testimony also highlighted the lack of due diligence on the FP’s part prior to entering into an agreement with the NP. Physicians have a duty to exercise due diligence when hiring an APP because the APP is making patient care decisions.9 This was not a negligent hiring or credentialing case, but the FP's failure to verify the credentials of the NP or discover the NP's expertise in treating patients reflected poorly on her. Had the NP been her employee, the FP would be at risk for direct liability for negligent credentialing and hiring.
The poor documentation significantly complicated the defense of this case, particularly since the NP and patient provided significantly different renditions of the course of treatment relative to whether the NP had done a punch biopsy at an earlier appointment, and if so why there was no evidence of it. During litigation, the defense team discovered the NP was not consistently documenting patient encounters, which diminished the integrity of the NP's testimony on the biopsy issue. Additionally, describing the lesion as "atypical" with no additional detail made it difficult for defense experts to opine on the appropriateness of cryotherapy without biopsy (as the NP testified) and/or referral.
Consider the following recommendations:10,11
Know the competencies of the APPs to whom you delegate patient care and verify the competence by discussion and personal observation.
Monitor the practice patterns of APPs to ensure acceptable quality of care.
Study the specific laws for each category of APP with whom you practice and understand what supervision/collaboration means in practical terms.
Verify that APPs are familiar with these laws.
When working with a new APP, schedule more frequent meetings to assess quality and oversight needs, until professional trust and reliance can be established.
Whenever applicable, develop written protocols that detail the manner in which APP practice should be overseen.
Identify conditions most likely to require physician input, and require physician review of those records.
Examine your practice and determine whether your APP agreements and protocols need to go beyond the minimum legal requirements to ensure the safety of your patients.
Require a level of medical record documentation that facilitates quality assurance and appropriate oversight.
Schedule a regular time for chart review and discussion of cases.
Document the time, discussion and the charts reviewed.
Schedule a regular time to verify progress toward meeting quality assurance requirements and any other legal practice oversight requirements.
Document your discussions and the time.
Have an attorney knowledgeable in healthcare law review APP agreements.
Review APP agreements for all new APPs whenever scope changes and at least every two years to note any changes to the APP’s practice.
The APP and physician should sign and date every review.
More information about risks associated with credentialing staff and medical directorships is contained in the June/July 2017 Claims Rx entitled "Managing Risk on the Business Side of Medicine." In addition, NORCAL's Risk Management Specialists are available to policyholders to discuss questions in this area, and patient safety and medical liability issues of importance to your practice. The risk management team can be reached at 855.882.3412 and risksolutions@norcal-group.com.
When Laws Change
The following treatment took place in Illinois, where NPs are allowed to prescribe controlled substances with certain limitations. The limitations relevant to the following case study include:12
NPs can only prescribe the Schedule II drugs that have been delegated by the NP's collaborating physician.
NPs must complete at least 45 graduate contact hours in pharmacology to prescribe Schedule II drugs.
NPs can only prescribe a 30-day supply of a Schedule II drug. Renewals require prior approval of the collaborating physician.
Case Two
Allegation:
Lack of physician oversight contributed to the patient's kidney failure.
In 2013, a 45-year-old man with diabetes presented to a community clinic as a new patient for an appointment with the NP. He had injured his back in a boating accident the previous year and wanted a hydrocodone renewal. At the time, hydrocodone was a Schedule III drug. The NP's collaborating physician had delegated prescriptive authority for Schedule III controlled substances to her. All of the appropriate paperwork was in place when the NP initially ordered a renewal of the patient's hydrocodone prescription.
In 2014, the FDA changed hydrocodone from a Schedule III to a Schedule II controlled substance. The NP failed to realize that the change required her and the collaborating physician to follow an additional set of regulations. Therefore, she continued to renew the patient's hydrocodone as she had been renewing it before the schedule change.
In 2016, the patient sued the NP and the collaborating physician, alleging his kidney failure was caused by their collective failure to appropriately manage his diabetes.
Although it was only peripherally relevant to the patient's injuries in the case, the NP's illegal prescribing of hydrocodone was discovered by the plaintiff's attorney during litigation. Her violation of the Illinois law was clear: she had been renewing a Schedule II drug prescription without pharmacology education, without hydrocodone being listed in the allowed formulary, and without the collaborating physician's prior approval. When questioned during their depositions, neither the NP nor the physician was certain of hydrocodone's schedule. The plaintiff's attorney was expected to attempt to use this information with other evidence to support his allegations that the NP had been practicing outside of her scope and the physician was failing to provide appropriate oversight.
The laws affecting the practice of medicine change all the time.
Consider the following recommendations:
Carefully review and understand prescriptive authority regulations.
Verify that APPs are familiar with prescriptive authority regulations.
Periodically review these laws to verify you and the APP are in compliance.
"Chart Review"
Patient record review is a required component of APP-physician practice in many states. In the following case, the physician and PA had a long-term working relationship. For many years, the physician had been signing off on the PA's patient records without reviewing them. The PA and physician had an informal agreement whereby the PA would request consultation on any case he thought urgent intervention was required. Their agreement highlights an inherent risk in their relationship—although well trained and conscientious, this PA did not have the medical training necessary to recognize that the patient had a critical condition. The patient's well-being, therefore, depended on the physician's record review.
Case Three
Allegation:
Failure to appropriately supervise a PA resulted in hemiparesis.
A PA examined an 18-year-old male patient for a swollen right eye and tenderness in his right temple after he had been poked in the eye during a wrestling match. He denied vision problems, headache, nausea or vomiting. He was able to move his head up and down without difficulty. The PA recommended acetaminophen and ice packs with a follow-up appointment in one week.
The patient returned three weeks later complaining of headache, vomiting, abdominal pain, eye pain, and diminished vision in his right eye. The PA examined him and documented a normal neurological exam. The patient refused a visual acuity test; therefore, the PA performed only a gross examination of his eye.
He noted swelling of the right eyelid and some redness of the eye. The PA made a referral to an ophthalmologist for two weeks in the future—the first available appointment. The patient was instructed to go to the emergency department (ED) if his vision problems worsened. Later that afternoon, the supervising physician co-signed the record.
The next evening, the patient's mother found him unresponsive. He was transported to the hospital where he was diagnosed with cavernous sinus thrombosis and orbital abscess with meningitis. The patient was ultimately discharged with significant hemiparesis. The patient and his family sued the clinic, physician and PA for failure to immediately refer the patient to the ED or an ophthalmologist for immediate evaluation following the second appointment.
Advanced practice professionals who are required by law to be supervised may progressively extend their scope of practice, becoming more independent over time. The small transgressions—paired with a lack of patient injury and acceptance by peers and supervisors-can become a "cultural norm" in the practice.13 In this environment, physicians can become complacent about supervision. However, when autonomy results in patient injury, the "cultural norm" in the office will not provide a defense to negligence allegations.
The family practice and emergency medicine experts reviewing this case did not believe that the PA's failure to refer was defensible. The neuro-ophthalmologist expert opined that the duration of swelling alone was enough to indicate a serious problem. The infectious disease expert opined that referral to the ED at the second appointment most likely would have resulted in the abscess being drained and the meninges not becoming infected.
In defense of the negligent supervision allegations, the FP testified that he had complete confidence in the PA's ability to independently diagnose and treat most of the patients who came into the clinic and he trusted the PA to come to him if he needed assistance. However, physicians are accountable for care provided by the APPs they supervise, even when APPs do not request advice or guidance. The PA admitted that he very rarely felt the need to ask the physician for assistance, and sometimes when he did, he failed to do so because they were so busy.
Adequate supervision involves consultation and properly reviewing a PA's work. A physician who reviews a PA's record entries on a regular basis should be able to monitor the PA and determine if he or she is following written protocols, making accurate diagnoses, consulting appropriately and ordering appropriate medications and tests. Consider the following recommendations:
Thoroughly review any APP patient record before co-signing.
Follow state requirements for chart review and countersignature.
Develop and carry out a plan to ensure the quality of care provided by the APPs you supervise (e.g., identify areas to review, establish a review timeline, and determine how needed quality of care improvements will be addressed and implemented).
Document your supervision.
Develop and follow written standardized procedures, plans, protocols or practice guidelines to delineate APP duties and responsibilities.
Periodically review and update them to integrate any changes in scope of practice or duties.
Cultivate a collaborative climate where the APPs you supervise feel empowered to consult with you.
Explain to APPs how you wish to be contacted regarding questions about patient care and procedures.
Identify triggers for consultation (e.g., unusual conditions, abnormal study findings, failed responses to treatment, fractures above a certain level, etc.)
Delegating Tasks Outside Your Area of Specialty
A physician without the requisite training and expertise in a procedure being performed by an APP cannot provide adequate supervision.14 Consider the ways in which the supervising physician and PA in this case could have safeguarded their patient's well-being.
Case Four
In June 2015, an OB/GYN purchased a laser machine for his office. A company representative provided training sessions to the OB/GYN's staff, but the PA was only able to attend one of those sessions. In July, a patient made an appointment with the PA for laser removal of freckles and sunspots on her chest. The representative from the laser company was supposed to be present for guidance, but had an emergency and was unable to make the appointment. During the procedure, the patient complained of an intense stinging sensation, but the PA told her that the pain was normal and completed the procedure. The next day the patient returned to the office for treatment of stripes of burned skin on her chest. A year later, when it became clear that the burn scars were permanent, the patient filed a malpractice action against the PA alleging he was not appropriately trained in the use of the laser device, and against the OB/GYN alleging negligent supervision.
The plaintiff's experts argued that the patient would not have experienced the degree of erythematous striping on the treatment areas if the device settings had not been too high. Furthermore, they believed it was below the standard of care to continue treatment without lowering the levels on the laser device when the patient complained of discomfort.
Various issues complicated the defense of both the PA and the OB/GYN, including:
The OB/GYN was not sufficiently trained on the laser.
The OB/GYN's office had no written supervision policies and protocols.
The medical record showed no indication of physician supervision.
The OB/GYN had completely delegated the training of his staff to the laser company representative, and he had no process for determining whether the PA was proficient.
Consider the following recommendations:
Only supervise APPs who are doing procedures within your scope of practice and for which you have been appropriately trained.
Establish and abide by requirements for appropriate training.
Only delegate a task to an APP who has the training and experience necessary to complete that task.
Document the process of determining whether an APP is competent and can safely and effectively perform procedures being carried out without direct supervision.
Empower APPs to refuse tasks they feel they are not sufficiently trained in or experienced to perform.
Advanced Practice Professional Agreements and Practice Mergers
Lack of physician supervision and supervision protocols, procedures and agreements severely hampered the defense of malpractice allegations in the following case. Consider the ways in which this patient injury could have been avoided.
Case Five
Allegation:
Failure to diagnose and treat acute myocardial infarction resulted in the patient's death.
Two family practice groups had recently merged. Patient care continued while the two practices combined their resources and reassigned employees. The administration had not yet completed the supervisory agreements for newly created physician-PA teams. Treatment at the after-hours clinic was provided by a PA and a nurse. There was no supervising physician on site, but a group physician was available by telephone for consultation.
A diabetic 60-year-old male patient presented to the after-hours clinic with chest and abdominal pains, nausea and vomiting for the past 12 hours. He had not taken his diabetes medicine the night before. The PA focused on the patient's complaints of vomiting and nausea because his blood sugar was significantly elevated. The PA believed the high blood sugar explained the patient's vomiting, which had caused dehydration. He ordered promethazine and IV hydration.
When the patient's blood sugars began to normalize, he was discharged with an antiemetic and instructions to go to the ED if his symptoms worsened. The PA did not contact the supervising physician about the patient. That evening the patient died of an acute myocardial infarction (MI). The patient's wife sued the group, the PA and the physician who was scheduled to supervise that evening for failure to diagnose the patient's ongoing MI.
Experts believed the PA's diagnosis and treatment of diabetic ketoacidosis was appropriate, but also that the PA should have evaluated the patient's chest pain, which most likely indicated the patient was in the middle of an MI when he presented to the clinic. Experts believed that the patient would have survived if the PA had sent him to the ED. Experts assumed that the supervising physician would have noted the patient's presenting complaint of chest pain (had he seen the record) and questioned the appropriateness of releasing the patient without physician consultation.
The supervision protocols for PAs at the clinic were inadequate on various levels. This particular PA had no supervisory agreement with the physician who was supervising him. The absence of an agreement presented a major defense problem, because it was a violation of a regulation in the state in which the care was provided. Consequently, the plaintiff had grounds for an allegation of "negligence per se" (i.e., that an act or omission was negligent by virtue of violating the regulation). Also, since there were no protocols in place, the PA had no guidance on which conditions warranted consultation with a physician.
Consider the following recommendations:
Administrators
Use physician/APP-specific collaborative or supervising agreements. The use of a generic agreement that doesn’t apply to the individual physician/APP team will most likely not fulfill state laws and regulations and will not provide guidance appropriate to the individual clinician experience and training.
Do not use a form agreement that attempts to cover both NPs and PAs—state laws for NP versus PA oversight are different.
Update agreements on a regular basis and whenever personnel, delegated duties or APP practice laws change.
Supervising/Collaborating Physicians
Be aware of the competencies of the APP to whom you delegate duties.
Take part in the development of APP supervisory/collaborative agreements.
Do not make assumptions about an APP's understanding of his or her responsibilities pursuant to the agreement; confirm it.
Encourage APPs to consult with you when they encounter tasks that may be beyond their competence levels or have any questions regarding the care and treatment of patients.
Advanced Practice Professionals
Recognize your comfort level. Clearly understand under which circumstances immediate physician consultation must be obtained.
Regularly review supervisory/collaborative agreements and ensure they are updated as duties change.
Do not be too proud, stubborn and/or timid to request consultation.
Delegation of Informed Consent
It is important to understand state-specific requirements regarding the delegation of informed consent duties. The Pennsylvania Supreme Court recently heard a case in which a surgical PA had discussions with the patient about the risks, benefits and alternatives of the procedure. The surgeon had also had an informed consent discussion with the patient, but she could not recall it. The patient alleged the discussion with the PA did not satisfy the state informed consent requirements. The jury wanted to know whether they could consider the information provided to the patient by the PA when determining whether the patient gave an informed consent.
The surgeon argued that it was the information conveyed, not the person conveying it that determined an informed consent had been given. The Court disagreed with the surgeon and concluded: "A physician may not delegate to others his or her obligation to provide sufficient information in order to obtain a patient's informed consent. Informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent.
The duty to obtain the patient's informed consent belongs solely to the physician."
While the Pennsylvania ruling is not case law in other states, this case highlights not only the importance of understanding the informed consent laws in your state, but also the importance of clarifying the delegation of duties in a physician-APP relationship.
Additional information and discussion about the Pennsylvania Supreme Court ruling is available on the Pennsylvania Medical Society's website at www.pamedsoc.org/... or in the Pennsylvania Supreme Court opinion, which is available at: caselaw.findlaw.com/pa-supreme-court/... (both accessed 10/28/2016).
Advanced practice professionals bring many benefits to healthcare delivery. Physicians can increase patient safety while decreasing liability risk by creating, monitoring and enforcing clearly written and agreed-upon protocols, policies and procedures that set forth APP scope of practice and conform to applicable laws, advisories and guidelines; ensuring competence; developing and encouraging adequate physician-APP communications; and ensuring thorough chart review.
The NORCAL documents referenced in this article, along with many other Risk Management Resource documents and past editions of the Claims Rx, are available in the Risk Solutions area of MyACCOUNT, or by policyholder request at 855.882.3412.
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Hudspeth R. Understanding Discipline of Nurse Practitioners by Boards of Nursing. JNP. 2009;5(5):365–371. Available at: www.npjournal.org/... (accessed 10/30/2017).
American Academy of Family Physicians. Guidelines on the Supervision of Certified Nurse Midwives, Nurse Practitioners and Physician Assistants. AAFP Website. Updated 2013. Available at: www.aafp.org/... (accessed 10/30/2017).
Leone A. A New Avenue Of Care: Advanced Practice Nursing. NJ Law Journal Medical Malpractice. 2015 May. Available at: www.evergreeneditions.com/... (accessed 10/30/2017).
Alabama Board of Medical Examiners. Using mid-level medical practitioners in your medical practice Alabama BME Newsletter and Report. 2006. Available at: www.albme.org/... (accessed 10/30/2017).
State of Illinois Department of Financial & Professional Regulation. Information Sheet. Prescriptive Authority for Advanced Practice Nurse Mid-Level Practitioner. IDFPF website. Updated 3/11/2016. Available at: www.idfpr.com/... (accessed 10/30/2017).
Chastaun K, Burhans L. The Consequences of "Practice Drift": Is it Worth the Risk? Oregon Board of Nursing Sentinel. 2017 May;6(2):4-9. Available at: digital.osl... (accessed 10/30/2017).
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