Will Supervising EP Be Named in Claim Against PA?

Will Supervising EP Be Named in Claim Against PA?

Suits allege improper supervision

Matt Mitcham, senior vice president claims for MagMutual, an Atlanta-based provider of medical professional liability insurance, sees many claims against emergency physicians (EPs) alleging improper supervision of physician assistants (PAs), resulting in a clear misdiagnosis of the patient’s medical condition.

"With the increase in patient workload in the emergency room, we are seeing the need for more physician’s assistants involved in patient care," says Mitcham. "Unfortunately, if you are the supervising physician, you are not immune from litigation if the PA should make a mistake."

In some cases, EPs don’t look closely at the charts of physician assistants, and "simply rubber stamp them," says Mitcham. "As their supervisor, you are legally responsible for their actions, and if they are sued, you will be in the litigation."

An example of such a case involves a 34-year-old post-partum female who presented to an ED with back pain and a blood pressure of 175/92. "She was treated by a PA with pain medication and dismissed," says Mitcham. The supervising EP did not see the patient, and the patient returned 12 hours later with a subarachnoid hemorrhage.

"The allegations are that the PA missed the diagnosis, and that if the supervising EP had seen the patient or the medical record, this might have been avoided," says Mitcham.

A 2006 case involving an EP supervising a PA resulted in a jury verdict of $217 million, and later settled for an undisclosed amount. "This case involved several unique factors," says Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney. First, the EP allowed a PA to perform a medical screening examination on a patient whose presenting complaint should have received an examination by the EP, says Frew.

"It turns out that the PA was not licensed. The physician perjured himself and testified that he had provided the exam rather than the PA," says Frew. The EP’s defense attorney found out about the perjury and withdrew from the case. "The patient’s attorney smelled a rat, and got additional depositions to explore what the defense was hiding," says Frew. "The physician confessed in the second deposition. In the interim, the PA had died."

Despite the unique factors in the case, the claim stemmed from common issues in the use of PAs in some EDs, says Frew. Here are some common practices that can result in malpractice litigation against supervising EPs:

• PAs are often allowed to over-extend the scope of patients they see based on state scope of practice rules or on hospital protocols.

"This exposes the hospital to EMTALA [Emergency Medical Treatment and Labor Act] liability, and the supervising physician to malpractice claims," says Frew.

• Some hospitals and groups commit fraud by billing for a physician visit when the PA examined the patient.

In some cases, the EP never saw the patient or evaluated the patient’s condition before discharge. "Obviously, this puts the physician supervising the PA as the target in a fraud investigation, which has much more serious potential than a mere malpractice suit," says Frew.

• Sloppy credentialing is an issue in some facilities, which often results in lapses in licensing.

"Allowing services by an improperly licensed individual could add fire to a malpractice claim against a supervising physician if a mistake allegedly occurs on the theory of negligent supervision," says Frew.

Allegations of Negligent Supervision

Justin S. Greenfelder, JD, Buckingham, Doolittle & Burroughs, Canton, OH, recently represented the medical director of anesthesiology in a community hospital who was sued for the allegedly negligent acts of his certified registered nurse anesthetist (CRNA).

"The claim involved a micro-laryngoscopy surgery, during which the patient was deprived of oxygen for several minutes and passed away," he says. The patient’s family claimed that the CRNA was negligent in the performance of her duties in preserving the patient’s airway during surgery.

"My client, the medical director of anesthesiology, was not present in the hospital on the day of surgery," says Greenfelder. "The other anesthesiologist was present and observing the CRNA."

The patient sued the CRNA, the anesthesiologist, the surgeon, and the hospital on claims of direct negligence. The medical director was sued on a theory that he negligently supervised the CRNA and should have known that the CRNA had a pattern of substandard conduct in previous surgeries.

"Basically, the plaintiff claimed that the medical director had an independent duty to prevent the CRNA from acting negligently," says Greenfelder. He filed a summary judgment motion asking the court to dismiss the claims against the medical director, on the grounds they were not cognizable under Ohio law.

"The prerequisite to any claim for medical malpractice is the existence of a physician-patient relationship," notes Greenfelder. "The only exception under Ohio law is when a physician is under contract to supervise residents at a teaching hospital."

The plaintiff argued that the services agreement between the medical director’s group and the hospital created a physician-patient relationship. Greenfelder argued that such an interpretation would create such a relationship between a medical director and every anesthesiology patient in the hospital, and the medical director did not consent to such a relationship.

Before the trial court could rule on the motion for summary judgment, the case went up on appeal on an unrelated issue. "While the appeal was pending, the hospital and CRNA settled and the plaintiff agreed to dismiss all claims against my client," says Greenfelder. The case is continuing against the surgeon and anesthesiologist.

"I felt very confident that the court would have granted my summary judgment motion. This is a likely reason why the plaintiff agreed to dismiss his claims against the medical director," says Greenfelder. As in Ohio, most states require that a physician-patient relationship exist before any physician can be held liable for malpractice.

"This is no different in the ED," says Greenfelder. "ED policies should be clear as to the scope of a PA’s practice and the degree of supervision required."

The potential liability of the EP depends on the degree of supervision over the PA, he explains. If the EP is required to sign off on the patient’s chart, there is a much greater opportunity for the EP to be liable if something goes wrong.

If the EP also generally supervises the PA’s conduct but has no direct responsibility for a particular patient/plaintiff, an argument can be made regarding potential liability for negligent supervision. "But it is by no means a sure thing," says Greenfelder. "If the EP has no supervisory responsibility and the PA acts autonomously, the same argument regarding the lack of a physician-patient relationship can be made."

In general, an ED medical director should not be liable for the conduct of a PA unless the medical director takes a direct supervisory role over the PA’s care of the particular patient making the claim, he adds.

"ED medical directors should be cautious, though," says Greenfelder. "Take note of any troubling conduct by PAs to avoid any claim that the medical director should have known’ that the PA had a pattern of negligent conduct and was in a position to prevent it." n

SOURCES

• Stephen A. Frew, JD, Loves Park, IL. Phone: (608) 658-5035. E-mail: [email protected].

• Justin S. Greenfelder, JD, Buckingham, Doolittle & Burroughs, Canton, OH. Phone: (330) 491-5230. E-mail: [email protected].

• Matt Mitcham, Senior Vice President Claims, MagMutual Insurance Company, Atlanta, GA. Phone: (404) 842-5655. E-mail: [email protected].