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By: Carol Wells, MBA, BS, RN, Paralegal (Guest Blogger)
Part II of our Medical Malpractice Series

Are we wearing you out with all of our substantive and educational posts, as of late, TPS readers? We certainly hope so! Today, Carol is back to provide us with another terrific article from her in-depth series featuring the topic of Medical Malpractice. Let me ask you this: Have you or a family member ever seen a Physician’s Assistant or Nurse Practitioner during a medical visit? If so, you need to read this article! I found it very educational and enlightening, and I hope you do too! Part II of your med mal education begins…right now!

While many malpractice cases are brought by patients and families of patients harmed in the practice of medicine, some cases are brought by the state against health care providers who may be practicing outside the scope of their practice, and the physicians who may inadvertently them to do so. This potential has increased because the increased costs of running a medical practice may encourage Physician to invest in lower cost extenders to provide care to patients in an office or clinic setting. Additionally, due to insurance payment issues, it is far more likely some surgeries or procedures will be done on an outpatient basis, and unfortunately, this could mean that a Physician extender steps over the line to exceed their scope of practice. When this occurs, it is the physician under whom the extender is working who will pay the price. Cases like this may cause criminal charges to be brought against the Physician and cause either loss of license or censure for a designated period of time.

The Unauthorized Practice of Medicine

Unauthorized practice of medicine means that a professional, and in some cases non-professionals, engage in actions considered to be under the scope of the practice of medicine. Unauthorized practice of medicine means their actions were meant to treat and illness or condition without the proper training or background. As you will see, physician extenders, such as Physician Assistants  and Nurse Practitioners, have a level of expertise meant to supplement, not supplant, medical care. The act of delegation denotes a Physician’s responsibility for the actions of both the PA and the NP. It is ultimately the MD that is responsible, and that responsibility comes from an act or omission to act, or failure to supervise properly either the PA or NP.

The Role of the Physician’s Assistant

Physician Assistant’s (PA) are licensed in the U.S. to assist in the practice of medicine under the direction of a physician. Entry-level education is a Bachelor’s degree. They are licensed through a national certifying exam and accredited by the Accreditation Review Commission on Education for the Physician Assistant. They can perform examinations, diagnosis, treatments, and have prescriptive authority. To maintain their licenses, PA’s must undergo 100 hours of continuing education every two years, and recertify by exam every six years. To maintain their licenses, PA’s must undergo 100 hours of continuing education every two years and recertify, by exam, every six. While they work in association with physicians, they are not independent practitioners.  Unlike physicians, PA’s cannot specialize and have no specialty boards. They work alongside MD’s in an autonomous relationship, which includes ordering tests, interpreting tests, and prescribing. They can staff clinics, assist in surgery, and work on call for the practice. PA’s can treat most primary care illnesses on their own, which means that they are responsible for the diagnosis and treatment options, they also do perform follow up examinations when necessary.

The Nurse Practitioner’s Role

Nurse Practitioner’s (NP) also work along side MD’s.  NP’s are Master’s level prepared Nurses who have specialized in a particular area of Medicine. NP’s are also primary care providers that can diagnose and manage illnesses. Nurses historically have also been trained in health promotion and prevention. NP’s can perform most of the functions of a PA, however not all states allow NP’s the autonomy of PA’s, especially when it comes to prescriptive rights. Nurse practitioners are licensed in each state, their licenses can be held in more than one state at a time, by virtue of sitting for one licensing exam, their practices are overseen by the American Academy of Nurse Practitioners, and most, if not all, are certified in their specialties.  Nursing practice is bound by the Nurse Practice Act of each state they practice in. This includes Nurses who are not NP’s.

Negligence and Liability in Medical Malpractice Cases

The basic legal concept used in malpractice cases is negligence. Negligence is defined under Tort Law as “a civil wrong for which a remedy can be obtained, usually in the form of damages”. In bringing a suit against a provider, the plaintiff’s attorney must prove that the provider had a duty to care, that the duty was violated due to a standard of practice below the accepted standard, that the substandard care caused the alleged harm, and that the plaintiff suffered compensable harm. Likewise, the patient must show a connection between the injury and the actions of the care provider. In the case of the use of care extenders such as PA’s and NP’s, the physician is ultimately responsible for their actions. Therefore, even though the Physician may not have been directly responsible or even in the room, he or she will be legally responsible.

If this is the case, there will be a form of respondent superior attached to the case because the physician should have been supervising the PA or NP more closely. Respondent superior is a concept that takes into consideration an employer/employee relationship where the employer is responsible for the actions of his or her employee. To prove this, elements to the case must include: 1) the PA or NP was negligent and did not meet the standard of care, and 2) that there was an employer/employee relationship consisting of a “Master-Servant” relationship.  In 1957, the MD Court of Appeals put forth five factors to be considered in this type of relationship: a) selection and engagement of the servant, b) payment of wages, c) power to discharge (fire), d) power to control the servant’s conduct, and e) whether the work was part of the normal business of the employer.

Finally, Physician liability for the PA and or NP lie in three theories: vicarious liability, which is when the Physician has been found negligent by means of the PA or NP’s actions, whether or not they were actually present; negligent supervision, which is where the Physician fails to adequately oversee the work of the PA or NP; and negligent hiring, which occurs when the PA or NP is hired and the Physician is aware, or has reason to know, that he or she is incompetent or unfit. If a potential employer fails to check the competence level of the PA or NP prior to hiring, the employer can also be found liable.

Carol will be back soon with Part III of the Medical Malpractice Series!

Resources used:

Delman, J., 2003. The use or misuse of physician extenders, Journal of legal medicine, 24:3, 249-280

Gore, C. L., 2000. A Physician’s liability for mistakes of a Physician Assistant, Journal of legal medicine, 21:1, 125-142

Moses, R. and Field, A., 2007, Physician liability for medical errors of non physician clinicians: Nurse Practitioners and Physician Assistants, American journal of gastroenterology, 102, 6-9

Carol Wells is a 52-year-old woman with 30 years nursing experience in diverse areas of the health system. She became a Nurse in 1983, after graduating as a LPN, achieving her ASN in 1987, a Bachelor’s degree in Health Care Management in 1999, and MBA’s in Management Information Systems, Health Care Management, and Marketing. Carol is currently on leave from a Doctorate in Health Administration.

Be sure to check out Carol’s blog, Leftist Moderate Speak, which features political discussions about healthcare topics at: www.leftistmoderatespeak.com.

So, did you learn something new from this article, TPS readers? I sure did!  If you have anything to share, we’d love to hear your thoughts, so hit that comment button and sound off!

We’ll see you on “Fun” Friday! Hey – is that your attorney I hear calling your name in the background? Ha. Of course it is! Upward and onward, TPS paralegals! Duty calls (and so does your esquire)…