Activity 5 Memo - Physician Extenders Tort Liability
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Jan 9, 2024
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Uploaded by jadamarie123
Memorandum
To: Physician Owners, State Chain Urgent Care Centers
From: Jada Porter, Director of Risk Management
Re: Potential Tort Liability for Physician Extenders Date: December 16
th
, 2023
Question
What is the nature and scope of potential medical malpractice liability for physicians and physician extenders? What is the recommendation regarding the potential employment of physician assistants and nurse practitioners in this medical business? Brief Answer
The nature and scope of potential medical malpractice liability for physicians and their extenders is complex. Physician extenders can be held liable for negligence similarly to their physician counterparts. It is heavily influenced by legal theories and state & federal regulations. There are several areas within medical practice where errors or negligence can result in legal liability for both parties. Facts
The Physician Owners of this statewide chain of urgent care centers are considering hiring multiple physician assistants and nurse practitioners to work at each of the care center locations. The physician owners require a summary of the nature and scope of potential medical malpractice liability for the physician extenders in the practice and for the physicians with regard to adding these service providers to the business. An informed
recommendation will be provided to the physician owners regarding the potential employment of physician assistants and nurse practitioners. Discussion
Physicians often hire physician extenders such as physician assistants and nurse practitioners to increase the efficiency of their healthcare practice. These job roles are intended to assist in alleviating a portion of physicians’ work responsibilities when their medical care is in high demand. In a study concerning the employment of physician extenders, several physicians reported increased flexibility upon their hire (National Library of Medicine, 2013). Physicians have noted that their assistants and nurse practitioners allow them “to focus more time on complex patients” which has contributed
to less stress as well (National Library of Medicine, 2013). With the assistance of a physician assistant or nurse practitioner, more patients have quality healthcare services made accessible to them. From a financial business perspective, hiring these physician extenders can potentially be a smart choice because they can often “generate similar revenues at considerably less compensation than a physician” (American College of Physicians, 2010). The employment of a physician assistant or nurse practitioner would essentially be more cost effective than hiring additional physicians to assist at the urgent care centers. However, physician extenders can potentially increase medical malpractice liability risks for the practice. Liability risks typically create a strain on the finances and credibility of medical practices. To determine a physician or physician extender’s liability, the nature of their work relationship must be established first. The specific regulations that define this work relationship is governed by state law which typically varies. The physician is required to formally review the state and board protocols with
their extender employee to determine how they are permitted to practice. Also, the physician is typically required to create a “written delegation agreement” with physician assistants and nurse practitioners that is signed by both parties (NJ Consumer Affairs, 2019). This agreement describes the specific duties that the physician extender is permitted to complete under the direct supervision of the physician. “There are essentially three legal theories commonly used to ascribe liability to the physician for errors from their non-physician provider: vicarious liability, negligent supervision, and negligent hiring” (American Journal of Gastroenterology, 2007). Under the vicarious liability cause of action, physicians are held responsible for the negligent actions of their employees. The physician owners can be held liable for negligent hiring if the plaintiff proves that the employer failed “to exercise reasonable care in the hiring process” (Journal of Urgent Care Medicine, 2013). It is the physician owners’ responsibility to ensure that their physician extender employee has an adequate amount of education and training that is required by state statutes to complete their assigned tasks. The physician owners must adhere to an appropriate screening process to verify the credentials of their extender candidates. It is most common for “claims against physicians for mistakes of non-physician providers to stem from five areas: lack of adequate supervision by a physician, untimely referral to a consultant; failure to diagnose properly, inadequate examination, and negligent misrepresentation” (American Journal of Gastroenterology, 2007). The physician owners are responsible for ensuring that their physician extender only performs tasks that were assigned within their scope of practice. The physicians must also provide appropriate supervision over their extenders to ensure a high quality of care. The amount of supervision that physician extenders require is set by state law
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allowing full, reduced, or restricted practice. Full practice states such as New York and Connecticut allow physician extenders to evaluate patients with discretion which includes
diagnostic and prescriptive authority (American Association of Nurse Practitioners, 2023). States with reduced practice regulations including New Jersey and Pennsylvania require the physician extender to have a “collaborative agreement” to essentially work alongside a health care provider with a few limitations (American Association of Nurse Practitioners, 2023). Furthermore, restrictive practice states like Texas and Florida do not allow discretion for physician extenders who are to specifically abide by the delegation of
the physician at all times (American Association of Nurse Practitioners, 2023). Physician extenders will be held liable if they do not comply with their supervision requirement. For example, if a nurse practitioner who is employed at an urgent care center in Florida prescribed a strong pain reliever drug to a patient without consulting with the physician, this could result in the loss of their licensure. Additionally, physician owners may be found negligent if they violate their supervisory ratio which varies by state. For example, an urgent care physician in New Jersey “may not supervise more than four physician assistants at any one time” (NJAC 13:35-2B.10). However, in comparison to the state of Nevada, physicians “may not supervise more than three total physician assistants at one time” (NAC 633.288(6)). Failure to exercise proper supervision as defined by state law could result in the physician owners’ legal liability. Furthermore, both physicians and physician extenders face liability issues if a patient is misdiagnosed or not adequately examined. In Brown v. Philadelphia College of Osteopathic Medicine, an inaccurate syphilis diagnosis of the plaintiff’s infant child was “the proximate cause” of severe damages such as “the breakdown of a marriage, physical violence, and loss of
employment” (760 A.2d 863 (Sup. Ct. Pa. 2000). This example of a failure to properly diagnose created emotional distress for the plaintiffs which established the physician’s liability. In serious cases, a physician and extender’s legal liability can quickly escalate to
criminal charges as well. In recent years, there have been many instances of physicians and their extenders making untimely referrals and negligent misrepresentations to commit
healthcare fraud. In the United States v. Toh, a physician and extender employees are facing five years in prison, after receiving kickback bribes in exchange for filing “fraudulent claims and referrals to Medicare and Medicaid for cancer genetic tests” (
United States v. Toh
, 3:22-cr-00392 (M.D. Tenn. Aug. 10, 2023). In this example, the defendants knowingly violated the Anti-Kickback Statute, which holds medical professionals liable for inducing or rewarding bribes in any form to receive patient referrals or any medical products and services that are paid through federal healthcare programs (42 U.S.C. §1320a-7b). Healthcare fraud is unjust and creates a scandal that would be detrimental to the reputation of the chain urgent care centers. Conclusion
In conclusion, the potential for medical malpractice liability for physicians who employ physician assistants and nurse practitioners is significant. The benefits of increased efficiency and improved patient access to healthcare through physician extenders are acknowledged. Physician extenders may also be more cost effective to hire. However, the
associated risks with their employment should not be overlooked. The legal precedents including cases such as Brown v. Philadelphia College of Osteopathic Medicine and United States v. Toh alongside the additional aforementioned sources illustrate the liable consequences of inadequate care provided by physicians and their extender employees. I
strongly advise the physician owners against adding physician assistants and nurse practitioners to this medical practice. This decision would jeopardize the integrity and legal standing of the urgent care centers. The benefits of adding physician extenders to the practice do not outweigh the potential liabilities. Citations
American Association of Nurse Practitioners. (2023, October). State Practice Environment
. https://www.aanp.org/advocacy/state/state-practice-environment
American College of Physicians. (2010). Hiring a PA or NP
.https://www.acponline.org/sites/default/files/documents/running_practice/
practice_management/human_resources/panp2.pdf
American Medical Association. (2019). Physician assistant scope of practice
- NJAC 13:35-2B.10) , NAC 633.288(6) https://www.ama-assn.org/sites/ama-
assn.org/files/corp/media-browser/public/arc-public/state-law-physician-assistant-
scope-practice.pdf
Brown v. Philadelphia College of Osteopathic Medicine, 760 A.2d 863 (Sup. Ct. Pa. 2000)
Moses, R. E., & Feld, A. D. (2007). Physician liability for medical errors of nonphysician clinicians: Nurse practitioners and physician assistants.
The American Journal of Gastroenterology,
102(1), 6-9. doi:https://doi.org/10.1111/j.1572-0241.2006.00804.x
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https://journals.lww.com/ajg/citation/2007/01000/physician_liability_for_medical
_error_of.4.aspx
New Jersey Consumer Affairs. (2019, May 21). State Board of Medical Examiners Laws
https://www.njconsumeraffairs.gov/Statutes/physician-assistant-
law.pdf
Taylor MT, Wayne Taylor D, Burrows K, Cunnington J, Lombardi A, Liou M. Qualitative study of employment of physician assistants by physicians: benefits and barriers in the Ontario health care system.
National Library of Medicine. 2013 Nov;59(11):e507-13. PMID: 24235209; PMCID: PMC3828112. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3828112/
The Journal of Urgent Care Medicine. (2013, November). Using Physician Extenders
- jucm.com. https://www.jucm.com/wp-content/uploads/2021/02/2013-
8226-27-Law.pdf
U.S. Department of Health and Human Services. (2021, October 5). The Anti-
Kickback Statute, 42 U.S.C. §1320a-7b
Office of Inspector General | Government Oversight. https://oig.hhs.gov/compliance/physician-education/fraud-abuse-laws/
United States Attorney’s Office. (2023, September 5
). United States v. Toh United
States v. Toh, 3:22-cr-00392
- Physician convicted in $9.5 million health care fraud conspiracy to accept kickbacks
. Middle District of Tennessee | United States Department of Justice. https://www.justice.gov/usao-mdtn/pr/physician-
convicted-95-million-health-care-fraud-conspiracy-accept-kickbacks