The economic pressures of modern medical practice often make it desirable to employ various physician “extenders” who can assist physicians in dealing with their many patients. However, along with the economic and logistical upsides can come significant liability risks that must be managed.
Medical assistants (MAs) pose a particular risk because although they are frequently the “link” between patient and physician, they have the least medical training and knowledge. Physicians can get themselves into trouble by relying too heavily on MAs, conferring an inappropriate amount of trust and responsibility on them, and not training them appropriately regarding the limitations of their duties. The following examples show the risk of relying too heavily on MAs.
The missed note
Following a cervical diskectomy, a patient is discharged home. On the morning of postop day 3, the patient calls the surgeon’s office after a cough and fever develop. An MA speaks to the patient and prepares a “patient call” note for the surgeon. Following the usual routine, the MA places that note in a pile with the other phone notes and leaves them all for the surgeon to review when she returns from surgery.
This note is not in any way “flagged” as more urgent than the others, so the surgeon only sees it when she works her way through all of the calls at the end of the day. By that time, the patient has collapsed and been transported to the hospital, where he is diagnosed with bilateral pneumonia. He is intubated and ventilated but succumbs to the condition a few days later.
The following primary questions must be asked in this case: Did the MA receive training that would have enabled her to recognize the acuity (or at least the possible acuity) of these symptoms? Did the MA have the ability to elevate the phone call in real-time to a nurse, midlevel provider, or a physician, rather than simply allowing the information to reach the surgeon in the normal course?
Three days following anterior lumbar interbody fusion surgery, the patient calls the surgeon’s office complaining of abdominal pain. The MA who takes the call does not ask (or at least does not document) the severity of the pain or its precise location. She also does not document whether she asked about the presence or absence of fever, the look of the wound, or bowel function.
Based upon instructions given by her physician employer years prior, she tells the patient that some abdominal pain is to be expected and that he should continue taking his prescribed pain medications as instructed. She also tells him to call back if he does not start feeling better.
A day later, the patient is transported to the hospital and diagnosed with a full-thickness bowel injury and sepsis. By that point, however, the patient is unresponsive, critically hypotensive, and suffering from disseminated intravascular coagulation. He expires during an attempt to resect the injured bowel.
Liability in such a case might hinge, not only on whether the MA gave good advice, but on whether the MA should be giving the advice in the first place. Many physician offices give MAs explicit instructions on what to tell patients who call in with certain complaints. However, permitting MAs to take symptoms and respond, even in rote or routine matters, may actually exceed the allowable scope of practice for MAs. It also can lead to missed opportunities to identify problems before they worsen.
Both of these examples are slightly modified from actual cases that went to trial. One resulted in a defense verdict. The other resulted in a $3.5 million verdict against the employing practice. Both illustrate the considerations essential to proper utilization of MAs.
Staying out of trouble
This is not to say that use of MAs is inappropriate or unwise. When used appropriately, an MA can be an essential member of the physician’s team. But physicians and medical practices must always be cognizant of the limitations that are imposed, both by law and by good practice, upon their usefulness.
Of course, in today’s legal environment, there are no guarantees that orthopaedic surgeons can insulate themselves or their practices from liability. But when considering how best to utilize MAs in an orthopaedic practice, the following tips could be useful.
Scope of practice—Know the state’s definition of scope of practice for MAs and ensure that all other physicians and MAs in the practice know it too. There can be variability among states as to the permissible scope, and the relevant regulatory bodies will sometimes update scope of practice. Generally speaking, these limitations are based on good common sense and can actually help prevent patients from receiving poor care that results in liability claims.
License and training—Ask yourself: Is a license (and the training necessary to achieve the licensure) really necessary before a person can perform a particular task properly? If the answer is “Yes,” an MA probably should not be the one charged with performing that task.
Elevating concerns—If MAs take calls from patients, have a system in place so that the MA, when hearing a patient’s complaint of particular symptoms, can elevate those concerns to a medical provider in real time. Ensure that a qualified provider is always available for that purpose. Consider generating a list of symptoms and complaints that must always be communicated to a more qualified provider and provide it to all MAs.
Foster sharing—Encourage a culture in which more information is better. If an MA has a question about whether certain information should be communicated, he or she should err on the side of giving more information than is needed, not less. It is better to respond to a minor problem than to see a Sheriff at the door holding a summons and a malpractice complaint.
Be precise—When talking about office staff to patients, be careful in describing them and their responsibilities. For example, never call an MA a “nurse.” This only feeds a misperception about that individual’s level of training, knowledge, and authority. If repeated often enough, everyone—the patient, the MA, other staff, and even other physicians—will buy into the misperception. And that will be a problem down the road.
C. Matthew Smith, Esq., is a named partner with Weathington Smith, Atlanta, where he focuses his practice primarily on the representation of physicians, hospitals, and ancillary medical professionals; he can be reached at firstname.lastname@example.org
Douglas W. Lundy, MD, MBA, is copresident of Resurgens Orthopaedics in Atlanta and a member of the AAOS Now editorial board.
Editor’s note: Articles labeled Orthopaedic Risk Manager (ORM) are presented by the Medical Liability Committee under the direction of Robert R. Slater Jr, MD, ORM editor. Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional. Email your comments to email@example.com or contact this issue’s contributors directly.