Don’t let a valuable asset turn into a liability
Efficient orthopaedic practices make use of the skills of physician extenders (PEs). Most commonly, these mid-level providers include physician assistants (PAs) and nurse practitioners (NPs). Although these skilled providers can effectively allow you to better serve patients, it is important to recognize that you, as the physician, are ultimately responsible for the care provided in your name.
In legal parlance, several types of liability are relevant for the surgeon who supervises PEs. The most common is the surgeon’s responsibility for his or her own actions, known as direct liability. Under the concept of vicarious liability, however, you might be responsible for the failure of an employee (the PE), even if you acted appropriately.
Let the superior respond
The most common application of vicarious liability is respondeat superior—“let the superior respond.” Under this theory, if the PE commits a negligent act and it is shown that the physician was in a position to control the PE’s activity, the physician could be liable. Assessing this control, however, includes considerations based on a legal description of a “master and servant relationship.” In Keitz v. National Paving (1957), the Maryland Court of Appeals established the following five criteria for such a relationship:
- selection and engagement
- payment of wages
- power to discharge
- power to control the servant’s conduct
- whether the work is a part of the regular business of the employer
The decisive test, however, is defined by whether the employer has the right to control and direct the employee in the performance of the work and in the manner that the work is to be done.
Liability for negligence directly due to the action of the PE can also be imputed to the physician under negligent supervision. This concept can also be used to attach liability to the physician even when negligence cannot be attached to the actions of the PE. Finally, negligent hiring can be charged when the physician does not practice due diligence when hiring PEs.
The liability risk
Lawsuits against PEs are not common, but most cases filed against a PE also name the supervising physician; settlements that do not involve the physician are rare. The Physician Insurers Association of America conducted a national review of closed claims (1985–2004) that involved PAs. The average indemnity payment was $174,871 (unadjusted to present value), which was higher than that for physicians.
PEs in family practice and internal medicine top the list with the highest numbers of claims and paid claims, but this may reflect the larger number of PEs in these fields. Orthopaedics ranks fifth in prevalence of risk for indemnity payments on behalf of PEs.
Claims against PEs can be grouped into the following four primary areas: (1) inadequate examination; (2) lack of adequate physician supervision; (3) delayed referral to a consultant (the supervising physician); and (4) failure of diagnosis. Across all specialties, diagnostic errors are the most prevalent medical liability claim involving PEs. Root cause analysis shows, however, that failure or delay of diagnosis is attributed to inadequate physician supervision.
Minimizing your risk
If your practice employs PAs, you can take specific steps to minimize the risk of a lawsuit. Be careful when hiring and be sure to confirm that the candidate has the training and certification he or she claims. Negligent selection can be invoked “if the physician knows, or has reason to know, that the PA is incompetent or unfit to perform the required duties. In addition, if employers fail to use reasonable care to discover a PA’s incompetence or unfitness before hiring, then they may be found negligent.”
If you employ an unlicensed person to provide medical care that requires a license, you may become liable for criminal charges. In Khan v. Medical Board of California, for example, the court ruled as follows: “It is the responsibility of the medical practitioner to contact the licensing agency and ensure the existence of the license of those in his or her employ.”
Although difficult cases can lead to diagnostic errors by any physician, errors in judgment by your PEs can be minimized by clarifying their scope of practice. Consider the following issues when defining the appropriate scope:
- state law
- delegation of responsibilities by the supervising physician
- education and training by the PE
- the setting (office, operating room, emergency department) in which the PE works
- In addition to checking references from prior work experience, confirm by proctoring that your PE has the required capabilities in his or her intended scope of practice.
Depending on state laws, PAs and NPs may have varying degrees of independence. PAs virtually always require physician supervision (except for select rural areas), while NPs can frequently function as independent providers. Clear written protocols, however, are essential and may include limiting the number of times a patient can see the PA or NP without seeing the physician or specifying the types of high-risk fractures that must be seen by the supervising physician within 24 hours.
Many lawsuits against PEs and their supervising physicians cite the failure of the PE to contact the physician. Often, the PE fails to recognize the significance of a finding on the history and physical examination and therefore did not see the need for contact. Comprehensive protocols (eg,“always document neurovascular status on a pediatric supracondylar fracture before and after casting”), as well as ongoing education, can help minimize this risk.
Some PEs may fear reprisal for unnecessarily disturbing their supervising physician. Both the supervising physician and the PE must recognize the collaborative nature of the relationship and eliminate any apprehension. The PE should always have reliable contact information for the supervising physician.
Patients should always know when they are being seen by a PE or a physician. To avoid confusion, name badges should clearly indicate “NP” or “PA” (expressly required for a physician assistant in Texas), PEs should identify themselves by title, and PEs should not wear the same “uniform” (white coat) as physicians. The physician who introduces the PE to the patient can both reassure the patient and clarify the different roles.
Finally, even though the PE will ideally be a reliable team member, the physician should regularly check his or her work habits. Consider asking patients who have had several visits with the PE about their experiences. Periodic checks can reassure the physician of the PE’s performance and reinforce the specific scope of practice for each.
The upside of PEs
With all these concerns, what is the benefit of employing PEs? Remember that many malpractice lawsuits are filed in response to a patient’s anger at a perceived failure of communication, empathy, or follow-up from the physician. A PE can improve communication with patients, providing a vicarious bond between the patient and the doctor.
Links to the cases and studies cited in this article, as well as additional resources, can be found in the online version, available at www.aaosnow.org
Alexandra E. Page, MD, is a member of the 2009–2010 AAOS Leadership Fellows Program.
She can be reached at email@example.com
Recommendations to minimize liability when using PEs
- Be rigorous in checking the credentials of any PE you consider hiring.
- Clarify the scope of practice and document with clear written protocols. Standards and scope of practice verbiage should be included in the hiring contract and include the following:
- lines of communication
- methods of communication with supervising physicians
- scope of practice, including limitations
- locations of practice (office, emergency department, operating room)
- signatures of both the PE and the supervising physician to document their understanding of the
- Monitor PEs to prevent their working beyond their skill level or beyond legal allowances.
- Create an environment in your practice that encourages PEs to consult with their supervising physicians whenever they have questions.
- Design electronic medical records with tracking mechanisms that require the signature of the PE as well as the supervising physician. Remember that your signature implies that you understand and agree with the diagnosis and treatment plan. You may delegate the responsibility, but you retain liability.
- Be sure that your professional liability insurance includes coverage for your PEs. If you add a PE to your staff, be sure to contact your malpractice carrier immediately.
Editor’s Note: Articles labeled Orthopaedic Risk Manager are presented by the Medical Liability Committee under the direction of contributing editor S. Jay Jayasankar, MD. Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional. E-mail your comments to firstname.lastname@example.org or contact this issue’s contributors directly.
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