PAs and NPs: the scope of physician liability
James E. Szalados, MD, JD, MBA, MHA, FCCM, FCCP, FCLM. Medical Director of Respiratory Care and Attending Physician, Critical Care and Medicine, Westside Anesthesiology Associates of Rochester, LLP. Unity Health System at Park Ridge Hospital, Rochester, NY. Consultant in Health Management and Legal Medicine, Brown and Tarantino, LLC, Attorneys at Law. Rochester, Buffalo, and White Plains, NY.
Disclaimer: The information contained herein is generic and does not constitute legal advice. The opinions expressed do not necessarily represent those of the institutions and entities listed with whom Dr. Szalados is affiliated.
Editor's Note: Patient satisfaction and increasingly busy emergency departments (EDs)- two concepts sometimes in conflict in the reality of practicing emergency medicine. Physician extenders are one economical approach to handling a busy ED's census while maintaining quality control. More patients can be seen without adding the costs of hiring additional physicians. Triaging lower acuity patients towards a "fast track" manned by physician extenders can facilitate shorter waiting times and, thereby, patient satisfaction. However, with physician extenders comes the potential for malpractice liability that is one step removed from the physician's personal control. Hence, careful consideration of the physician extenders' skills and the relationship they have with the hospital and the physicians is essential. This article highlights some of the issues involved with the use of physician extenders in the ED. — Richard J. Pawl, MD, JD, FACEP
Introduction
A collaborative team model of patient care that integrates physician, physician-extender, and nursing has repeatedly demonstrated improvement in both the quality and efficiency of health care delivery.1 In fact, properly supervised physician extenders can diminish liability risks for physicians and institutions. Physician extenders may actually increase patient satisfaction and compliance through more comprehensive communication, availability, and rapport—factors related to patient satisfaction and inversely associated with litigiousness. However, physician extenders also may increase liability risk for physicians and institutions based on principles of imputed liability. In addition, there are many areas in which the scope of practice of physician extenders is continually challenged and of which supervising entities must be aware.
Physician-extenders refer to a heterogeneous set of midlevel health care providers (e.g., physician assistants [PAs], and nurse practitioners [NPs],) and their respective specialized sub-categories (e.g., anesthesiology assistants and nurse anesthetists). Although the lines of distinction are increasingly unclear, midlevel providers are usually distinguished from other providers in medically aligned professions. Examples of such providers include psychologists, midwives, respiratory and other therapists, and clinical pharmacists, who are more likely to practice independently in an adjunct capacity. These adjunct providers frequently work in conjunction with the health care delivery team, but are not considered physician extenders. Independent practice is a professional political agenda item, especially for NPs and is increasingly the legislative norm; whereas PAs continue to work under physician supervision.
The use of the term physician extender in the context of this review will be limited to PAs and NPs, and the discussion will be limited to the context of physician extender roles within the traditional health care delivery team, acting under supervision by a physician and/or health care institution. Wherever possible, both the similarities and distinctions between the two categories of physician extender will be addressed.
Physician Extender Scope of Practice Overview
Physician Assistants. The designation PA or PA-C refers to those professionals who have successfully completed the certifying examination administered by the National Commission on Certification of Physician Assistants. Although the terminology is state-specific, generally, licensure is independent of supervisory arrangements, and employment registration requires a licensed supervising physician.2 All states have enacted laws and/or regulations recognizing PAs. The purpose of the legislation creating the designation of a registered physician's assistant was to provide assistants to work for and under the supervision of physicians and specialists to "permit medical services to be given to persons not receiving them now and whose qualifications will ensure that the health needs of patients are met properly."3
PAs may be registered to a supervising physician employed by a hospital or in the private practice community. PAs are individually licensed but practice under physician supervision, and their practice is limited to the supervising physician, who must always be available for consultation or assessment. Once licensed and registered, PAs have a broad scope of practice that is limited by both the scope of practice of their supervising physician and their own expertise and training. For example, New York statute provides that "… [m]edical acts, duties and responsibilities performed by a registered [PA] …. must: "1) be assigned to him by the supervising physician;… 2) be within the scope of practice of the supervising physician; and … 3) be appropriate to the education, training, and experience of the registered physician's assistant or registered specialist's assistant."4 Nonetheless, it is increasingly common for physicians to find themselves exposed to criminal liability for aiding and/or abetting others in the unauthorized practice of medicine.5 Some activities may be performed by a physician, but do not necessarily constitute the practice of medicine when performed by someone else. There is also conduct that non-physicians may legally perform without supervision. Finally there is conduct that can be performed by physician extenders, which when performed under the direction and supervision of a licensed physician, are legal, but which, without such direction and supervision, would constitute the illegal practice of medicine or surgery.
Hospitals are not required to employ PAs. However, if hospitals chose to do so, they must also extend an opportunity to PAs employed by community-based physicians to perform services that PAs are authorized to do by law, under the supervision of their employing physician. Hospitals must develop credentialing systems, performance evaluation procedures, and allow such duly credentialed PAs to accompany their employers to the hospital.6
In 2006, 48 states and the District of Columbia authorized physicians to delegate prescriptive privileges to their PAs.7 Forty-four of these states allow PAs to prescribe controlled substances. Additionally, nurses must accept appropriate PA orders.8 For example, following the enactment of the State of Washington statute authorizing PAs to issue prescriptions for medication and treatment, the Washington Nurses Association filed suit to enjoin, claiming that the regulation altered rules governing nursing. The court held that the PAs were agents for their supervising physicians rather than independent practitioners and that every order given by the PA was to be considered as if coming from the physician. The court also held that nurses were not exposed to increased liability because the supervising physician could not disclaim responsibility for any order written by the PAs.9
However, because PAs must be supervised, their ability to supervise others is limited. In Central Anesthesia Associates, P.C. v. Worthy, the plaintiffs, a husband and wife, brought a negligence action against defendants, medical center, anesthesiologists, student nurse anesthetist, and PA claiming that improper ventilation during induction for a post-partum tubal ligation caused the wife to sustain a cardiac arrest with consequent brain damage and a residual coma.10 At the time of the injury, a student nurse anesthetist was being supervised by the defendant PA. Georgia statute requires that anesthesia administered by a student must be under the direction and responsibility of an anesthesiologist,11 a responsibility not properly delegated to a PA. The anesthesiology group argued that supervision of student nurse anesthetists was a function that could be properly delegated to a PA trained in anesthesia. The appellate court disagreed with the defendant-anesthesiology group stating that a certified registered nurse anesthetist must be under the "direction and responsibility of a duly licensed physician… ." and therefore a student cannot lawfully administer anesthesia under supervision of a PA. The court granted partial summary judgment against all named defendants under the doctrine of negligence per se.12
Negligence per se typically refers to a negligent act that also violates existing statutory law. The court, in its determination of whether violation of a statute or ordinance constitutes negligence per se used a two-step standard of review consisting of an examination of the purposes of the legislation in question and thereafter "decide 1) whether the injured person falls within the class of persons it was intended to protect, and 2) whether the harm complained of was the harm it was intended to guard against."13
Here, the court opined that the purpose of Georgia Statute (O.C.G.A. § 43-26-9) was to "protect patients from the dangers of improperly administered anesthesia by those unqualified by a lack of what public policy regards as minimum education in the field, and by a lack of specified supervision."14 Therefore, it can be reasonably concluded that delegation of duties to a physician extender who does not possess minimum qualifications as determined by statute, may not only violate statute and constitute negligence per se but also violate standards of medical care and constitute medical malpractice.15
Nurse Practitioners. NPs function in a manner similar to PAs. NPs are also individually licensed, but many states require physician supervision and some require a formal collaborative arrangement with a physician.16 Thus, in many states, NPs must adhere to detailed clinical protocols that are required for diagnosis and treatment, and many states explicitly require that rules regarding physician accessibility, chart reviews, and conferencing be in place to support the therapeutic encounter. Therefore, although it may superficially appear that NPs enjoy greater independence of practice than PAs, the scope of NP practice is, in fact, more limited.
The American College of Emergency Physicians (ACEP) has issued policy statements endorsing practice guidelines both for PAs and NPs in the ED,17 and both policies stress the supervisory role of the emergency physician. ACEP defines a non-physician practitioner (NPP) based on the Medicare definition as either a nurse practitioner (NP) or a physician assistant (PA).18
The guidelines regarding PAs state that the PA works clinically under the supervision of an emergency physician who evaluates the care of each patient and assumes ultimate responsibility for that patient.19 The guidelines for NPs similarly specify that the emergency physician must be present in the ED or available for consultation.20 Under ACEP guidelines, NPs may be authorized to perform certain medical functions independently, but those also must be clearly delineated, and the procedures may be performed only after consulting with and/or under the direct supervision of an emergency physician.21 The ACEP guidelines require that respective scopes of practice be clearly articulated, and be consistent with state regulations; the ED medical director has the responsibility for credentialing procedures and direction of physician extender activities.22
Skill vs. Effort. There is a tension in the scope of practice parameters that can potentially represent hospital liability at the level of human resources. In Beall v. Curtis,23 six female NP plaintiffs filed an action under the Equal Pay Act of 1963, and Title VII of the Civil Rights Act of 1964, against defendant University of Georgia Health Service system. Plaintiff NPs claimed the state paid them less than it did the male PAs, who performed substantially equal work, and that the state intentionally segregated the positions on the basis of gender. The court determined that PAs were given a significantly higher salary than that established for plaintiffs, despite the fact that they usually provided identical or substantially similar health care services.
However, the court noted that the physician extenders possessed different levels of medical competence, skill, and expertise, and different responsibilities. The court noted that PAs could perform all of the medical tasks that an NP could perform, but due to the more limited training of NPs, the converse was not true. Therefore, the court concluded that NPs could not establish a prima facie Equal Pay Act claim. The court went on to note that the concept of skill includes consideration of such factors as experience, training, education, and ability.24 The concept of effort is concerned with the measurement of the physical or mental exertion needed for the performance of a job.25 Finally, the concept of responsibility relates to the degree of accountability required in the performance of the job.26
The practice of PAs was governed by statute and subject to the jurisdiction of the Composite State Board of Medical Examiners.27 NPs were regulated by the State Board of Nursing, which established standards for their practice; the category of nurse practitioner was not established by statute, but nurse practitioners are governed by the statutes that apply generally to nurses.28 The court opined that "[i]n the medical field the availability of skills not often used is an important component of competence, and it is an important consideration in staffing decisions. Although the practices of [PAs] and [NPs]… overlap to a large extent, so do the practices of the mid-level practitioners and physicians; but no claim can be seriously advanced to say that the mid-level practitioners and physicians deserve the same pay."29 Therefore, as the boundaries of scope of practice become increasingly less clear, the tensions between PAs and NPs are likely to provoke further controversy in the future.
Liability for Physician Extenders
The practice of a physician extender is defined by state laws. In general, each licensed practitioner is directly liable for his/her own actions in tort and negligence; therefore, nurses, physician extenders, and physicians are independently liable for their malpractice. Licensed practitioners are also separately liable to their individual licensing and registration boards for any professional misconduct. However, supervising entities (e.g., hospitals, professional groups, or physicians) also may be responsible for the malpractice of any employed licensed practitioners that occur within the scope of employment.
Physician Extender as Agent. The liability for the actions of others is based in the principles of agency. Agency refers to a legal relationship whereby one party (the agent) is authorized to represent another (the principal) in dealings with third parties (e.g., patients). Agency authority may be contractual (where the scope of authority is clearly communicated to the agent); apparent (where the scope of authority is communicated to the third party); inherent (wherein the principal is liable even when the agent acts in violation of the principal's orders or exceeds the scope of authority); or ratified authority (where the principal affirms a previously unauthorized act). Also, actual authority may be either express (clearly defined), or implied (based on a reasonable belief by the agent); and the circumstances under which authority is granted may result from contract, custom, circumstance, or be judicially defined in the event of that litigation occurs. In general, all agents owe their principals three duties: 1) loyalty; 2) obedience as to reasonable directions; and 3) care (which includes the duty to notify). Thus, there are several theories by which liability can be imputed upon employers and institutions for the care rendered by employed professional staff.
Under the theory of apparent or ostensible agency, a principal (e.g., an employing physician or hospital) "holds out" an agent (e.g., a physician extender) to the community as one who possesses certain authority, inducing the formation of a reasonable belief, on which a third party (the patient) reasonably relies. Under the related theories of apparent or ostensible agency, it is the breach by the institution's professional staff of its duty to prospective patients to deliver non-negligent care that forms the basis of the institution's vicarious liability.30 Thus, if hospitals permit or encourage patients to believe that independent contractors are, in fact, authorized agents of the hospital, then the hospital is liable for their actions as apparent agents.31
Most state courts that have adopted one of these theories of agency theories in liability cases and found both ED physicians and staff to be apparent agents of the hospital. Apparent agency also can be found in simple assumptions. Patients have claimed that they were treated by a physician extender who "appeared" to them as a physician. The distinction between physicians and physician extenders must be always be clear and obvious to patients and physician extenders should never be overtly or implicitly misrepresented to patients as physicians. Misrepresenting the status of an assistant, or even failing to disclose that status, has resulted in administrative sanctions and can form liability under the theory of misrepresentation. Plaintiffs have claimed that that they assumed a provider to be a physician simply because the provider wore a stethoscope and lab coat. In Texas, for example, in addition to expressly imposing legal responsibility on the employing physician for the PA's acts or omissions, state statute expressly requires the assistant to "wear a name tag identifying the [PA] as a [PA]" while engaged in professional activities.
Employee vs. Independent Contractor. Under the theory of inherent authority, the principal (employing physician or hospital) is liable for the actions of an agent (e.g., physician extender) even if no actual or apparent authority existed. A principal is liable for the acts of agents with inherent authority based on the theory of respondeat superior, which requires: 1) an existing master-servant relationship and 2) actions by the servant within the scope of his or her employment.32 Thus, to be vicariously liable under this theory, the tort of the employee (such as malpractice) must be committed within the scope of employment. However, respondeat superior may nonetheless also extend to situations where the scope of employment authority has been exceeded but the actions are similar to those authorized or previously ratified. Because the employer is liable for the torts of an employee, the need to determine whether an employment relationship exists arises frequently during cases where responsibility is litigated. The determination of an employee is based principally in the employer's right to control the manner and method in which the individual performs his or her tasks. Generally, employees are compensated on a time basis and are subject to close supervision in the details of their work.33 Other important considerations might include, for example, contractual characterizations of the nature of the work, local customs, the understandings of the parties, and the period of employment. Where an employment relationship exists, the principal will be liable, under respondeat superior, for negligence or malpractice by its employed agent that results in patient harm.34
However, an independent contractor is one who has a calling of his or her own, is hired to do a particular task, is paid by the task, and who follows his or her own discretion in carrying out the details of the task. The principal would have no right to control the manner and method in which an independent contractor performs his or her job. In general, the greater the degree of skill required, the more likely that an individual will be deemed an independent contractor. The employee-independent contractor distinction is important because, in general, no vicarious liability attaches to a hospital or employing physician ("principal") where the hired provider ("agent") is an independent contractor.35 Nonetheless, a principal can be found liable for the actions of independent contractors in certain narrow circumstances.
The doctrine of corporate negligence holds that a hospital owes an independent duty to its patients to use reasonable care to ensure that practitioners who are granted hospital privileges are competent, and the hospital must supervise the medical treatment rendered by its medical staff.36 Under the theory of corporate negligence, a hospital has a direct duty to patients to act in a non-negligent manner.37 In some circumstances, liability for the actions of either employees or independent contractors can be imposed on a hospital as a matter of public policy. Such circumstances may include negligent hiring or improper selection of staff (e.g., improper verification of credentials or failure to monitor performance); and non-delegable duties (e.g., sub-specialist back-up, supervision, or a duty to provide adequate facilities and equipment).
Because the employer will almost always be named as a co-defendant in alleged cases of malpractice involving a physician extender, both parties will necessarily take steps to protect themselves from liability. Where the physician extender is formally employed by a physician, hospital, clinic, or health plan, plaintiffs will typically plead vicarious liability. In those instances where the relationship is more clearly that of an independent contractor, the plaintiff will typically plead inadequate performance monitoring, inadequate backup, or negligent hiring.
Therefore, in any contractual arrangement situation involving a physician extender, a formal collaborative relationship detailing the authorities and responsibilities should be formulated and clearly communicated. Credentials verification and a formal pattern of supervision also should be devised, implemented, and documented to demonstrate the ongoing adequacy of supervision. Thus, it is a reasonable requirement that even if not specifically required by state statute, the physician extender should regularly consult with the supervising physician about patients treated, especially complex patients, and that the time and nature of the consultation be documented in the medical record. Even if it is the general procedure to allow physician extenders an otherwise appropriate degree of latitude in their practice, in serious situations, the physician should be directly involved to protect the interests of the patient, the physician extender, and to minimize his/her own liability. In a malpractice proceeding, despite allegations that a physician-patient duty was never created because the patient was not directly evaluated by the supervising physician, the plaintiffs will almost always successfully allege negligent supervision. They will frequently prevail since by law a physician extender cannot provide services without physician supervision.
Medical Liability or Legal Liability. The courts have refused to distinguish medical liability from legal liability where the supervisory liability of a physician is at issue. In Marchisotto v. Williams,38 decedent's estate alleged that during open heart surgery at Maimonides Medical Center, a PA acting under the supervision of a cardiac surgeon, negligently departed from accepted standards of surgical practice while harvesting, at the direction of the surgeon, the decedent's left radial artery, thereby causing damage to the radial nerve in the decedent's left arm. The cardiac surgeon testified that it was he who determined how to proceed during this surgery, and that he made decisions during the operation, such as the decisions to harvest the radial artery rather than a different vessel but denied liability for the outcome.
The defendant physician claimed that the statutory term medically responsible did not equate with a legal responsibility, citing to 10 NYCRR § 94.2 (f), which states that the
"physician supervising or employing a registered physician's assistant … shall remain medically responsible for the medical services performed by the registered physician's assistant … whom such physician supervises or employs". The court disagreed holding that the… "term 'medically responsible' should be construed to include acts of negligence and medical malpractice allegedly committed by a physician's assistant supervised or employed by the physician."39
In Rockefeller v. Kaiser Found. Health Plan, a patient went to her HMO's medical center for treatment of a cough, congestion, and fever.40 A treating PA diagnosed a viral syndrome, when the patient actually had pneumonia. The next day, the patient experienced severe shortness of breath and was taken by ambulance to the hospital where a chest x-ray revealed pneumonia. After being admitted to the hospital, Rockefeller became comatose and remained so for two months, sustaining permanent disabilities. The plaintiff claimed negligence due to a failure to order a chest x-ray and negligence per se on the grounds that the PA treated and prescribed drugs for her even though no doctor supervised him.41 The PA was authorized in his job description to "gather data base on all new patients or established patients with new problems … to include a complete medical history and physical examination, medical record review, appropriate initial diagnostic studies, and will be responsible for transmitting that information to the supervising physician(s) for review."42 If a "life threatening emergency situation" arose when the supervising physician was not present, the PA was authorized to "initiate appropriate evaluation and treatment."
However, this was not an established patient, nor an emergency. The court deferred to the Board of Medicine on the issue of whether the PA exceeded the scope of his job description by rendering a provisional diagnosis of plaintiff's condition.43
May I Borrow Your PA/NP? On the other hand, a physician extender who follows a physician's directive is at least partially protected. As a rule, a hospital is also normally protected from liability if physician extender staff, hired by the hospital, follow the orders of a treating physician, under the 'borrowed servant' doctrine. An employer may lend the services of his employees to another, making the employee a 'borrowed servant'. The key issue in the determination of who is liable for the unintentional tort of a borrowed servant is the determination of which party is the primary holder of the right to and level of control over the employee at the time that the negligence arose.
Thus, where a physician is authorized to temporarily use the services of an employed physician extender, the borrowing physician will typically assume legal responsibility and relieve the loaning principal (i.e., the hospital) of liability. An exception exists where the physician extender knows or should know that the borrowing physician's orders are so clearly outside the norms of accepted practice that ordinary prudence would require further inquiry into the correctness of the orders.44
For example, in Johnson v. Westfield Mem. Hosp., Inc., a PA examined a patient's eye in the hospital ED, reporting his findings to an ophthalmologist, carried out the ophthalmologist's instructions regarding plaintiff's treatment, and subsequently authorized the patient's discharge.45 Thereafter, the patient suffered a permanent visual loss and filed suit in malpractice against the PA and also alleging that the hospital was vicariously liable. Defendants moved for summary judgment, which the court granted, noting that a PA had neither the training, knowledge, or authority to contradict an ophthalmologist's orders; the court dismissed the action.46
The authority to order appropriate consultation and referral is an integral part of patient care. In Rivera v. County of Suffolk,47 a patient sought treatment at South Brookhaven Health Center West clinic on two occasions for a skin condition, which had been misdiagnosed by an NP and physician as an infection. The court determined that the Clinic could be held liable for the NP's conduct although the NP, while not employed by the Clinic, was assigned to treat patients there by her employer, a private physician group. The basis for the court's decision was that the plaintiff was a patient of the Clinic at the time that the alleged negligence occurred, and not a patient of either the NP or her employer. In essence, the NP was deemed to be a 'borrowed servant' to the Clinic, effectively relieving the employers, the private physician group (or the loaning principal) of liability for the specific act. Incidentally the court further noted that if an NP was treating patients at the Clinic without the authority to make proper referrals, then that fact alone would constitute another basis for the Clinic's liability.
Patient-Physician Relationships. In general, unless the physician is directly supervising a patient's care, it is best not to not co-sign a physician extender's medical documentation. Co-signature may constitute a ratification of an authorized action. Few states, if any, require a co-signature on the physician extender's chart and it may potentially increase the liability exposure of the physician by implying a level of involvement that may not have occurred. A co-signature may also imply tacit agreement and endorsement with a treatment where, in fact, supervision was indirect.
In Quirk v. Zuckerman,48 the plaintiff was treated by a physician and an NP at a hospital ED for an upper extremity complaint. The NP erroneously diagnosed epicondylitis or "tennis elbow." In fact, the plaintiff had a "compartment syndrome," which later necessitated amputation of the arm. After consultation with the NP, the ED attending physician signed the plaintiff's emergency room record and the prescription for Vicoprofen but he never actually examined or spoke with the patient. The court opined that the
"practice of a registered nurse practitioner … includes diagnosis of illness and physical conditions and the performance of therapeutic and corrective measures in "collaboration" with a licensed physician qualified to collaborate in the specialty involved. While the word "collaborate" is not legally defined by statute, the court can certainly apply its common ordinary meaning as defined in Webster's Dictionary, which is as follows: "cooperate, join (forces), work together, team up."54
The NP testified that she presented the patient's case to the attending physician for discussion after she had conducted a full examination of the patient. The New York statute that controlled in this case provides that collaborative medical services be rendered in accordance with a written practice agreement and written practice protocols that must contain explicit provisions for the resolution of disputes between the NP and the physician. However, the statute also is clear that if the written agreement does not provide such explicit protocols, then the collaborating physician's diagnosis or treatment prevails in the case of disagreement. Therefore, the ultimate responsibility for diagnosis and treatment rests with the physician where the written agreement is silent. Because there was no written protocol by the hospital, the ultimate responsibility for the diagnosis and treatment was found to rest with the physician. After consideration of the circumstances—including Dr. Zuckerman's prescription of narcotic medication for the plaintiff and the physician's collaboration and approval of the diagnosis and treatment rendered by the NP— the court concluded that a physician-patient relationship between Dr. Zuckerman and plaintiff existed.57 An implied physician-patient relationship can arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional.58 The court also noted that "[a] doctor is charged with the duty to exercise due care, as measured against the conduct of his or her own peers—the reasonably prudent doctor standard"52 In this case, it was incumbent on the attending physician to examine the patient's arm himself.
On the other hand, in the case of Monahan v. Obici Med. Mgmt. Servs,53 the court determined that an NP who followed existing protocols was neither liable for an error in judgment nor imputed liability to her supervisor. Monahan, the plaintiff, alleged that he experienced a sudden episode of dizziness and blurred vision and sought treatment at Wakefield Medical Center. Monahan claimed that he was expecting to be treated by a physician, but instead was examined and treated by an NP. The NP determined that Monahan had a "highly elevated" blood pressure, advised him to take a prescription blood pressure medicine, and return home for bed rest. The patient followed the instructions of the NP and returned home where he suffered a stroke. Monahan filed suit and alleged respondeat superior liability against the clinic's supervising physician, but the court ruled that as a matter of law, Monahan could not assert a medical malpractice claim against the physician based solely on an implied in law physician-patient relationship.54
Therefore, courts will vary in their willingness to imply a physician-patient relationship and state statute and precedent. Judicial determinations of fact will differ between jurisdictions and cases.
Potential Theories of Liability
Although certain medical tasks may be appropriately delegated to physician extenders, under statute, in specific circumstances, physician extenders may not perform such tasks. Generally, these limitations are based in criminal statutes. However, civil liability may also attach, and although untested, should be considered.
To Draw Blood or not to Draw Blood. For example, in People v. Reynolds,55 the defendant was involved in a head-on collision; he and the driver of the other vehicle were taken to Adirondack Medical Center where the other driver ultimately died of the injuries. The defendant was placed under arrest, charged with driving while intoxicated; he was asked to consent to a blood test and did so. A PA then ordered the defendant's blood to be drawn. The test revealed a blood alcohol content of 0.15% confirming intoxication. The defendant thereafter was indicted and charged with vehicular manslaughter and criminally negligent homicide.
At a suppression hearing, the County Court suppressed the results of defendant's blood test basing its decision on New York Vehicle and Traffic Law , which stated that upon the request of a police officer, certain enumerated individuals may collect blood samples from a suspect at the direction and under the supervision of a physician. Here, the record was clear that defendant's blood was drawn at the direction of a physician assistant, not a physician. The People argued their case based on the rules governing the PA scope of practice. but the appellate court affirmed the lower court's decision to suppress the blood alcohol results.
In contrast, the case of State v. Sliwinski,56 a police officer observed a vehicle turn a corner at a high speed and initiated a traffic stop. The officer arrested the defendant and took her to the sheriff's department, where after consent was obtained from the defendant, an NP drew the blood. Defendant argued that the blood draw was unreasonable because the NP who drew her blood was not a professional authorized by statute to do so, making the evidence inadmissible. The court ruled that an NP was authorized to draw blood because the NP was also a registered nurse and could perform that function as a nursing duty.
A similar statutory limitation on the scope of practice is evident in the case of Matter of Mary Jane P,57 wherein a patient was retained at a hospital for psychiatric treatment pursuant to N.Y. Mental Hygiene Law § 9.39. The involuntary treatment was based upon an examination and certification of both a psychiatrist and a collaborating licensed psychiatric NP. However, a reviewing court determined that the NP was not a physician and accordingly, the elements of the law that required examination and certification by two physicians within 48 hours, one of whom is on the hospital's psychiatric staff was not met. The court held that "[w]here the Legislature has prescribed that an action be taken by a physician, it must only be taken by a physician licensed to practice medicine and not by someone supervised by or collaborating with a physician."58
Finally, it should be noted that the professional relationship between physician extenders and patients may be privileged. In People v. Covington,59 the Colorado Supreme Court held that a photograph of a victim's injury taken by a physician assistant at the request of an investigating police officer fell under the physician-patient privilege. In Colorado, the physician-patient privilege is statutory.60 In Colorado, any certified medical professional can hold a physician-patient privilege. The court invoked that statute61 in its determination that information obtained by a PA, as a certified medical professional, in the course of treatment, fell clearly within the scope of the privilege statute.
Liability Under the False Claims Act
Federal statute defines the supervision requirements that must be met for supervising physicians to bill for services provided by other qualified non-physician providers. Physicians submit claims under Medicare Part B for the services of PAs and NPs either as: 1) physician services billed under the Unique Provider Identification Number (UPIN) of the physician as services provided "incident to the service of a physician"62 or 2) under the UPIN of the PA or NP. Services may be submitted as "incident to" if 1) they are rendered by an employee under the physician's immediate personal supervision, and, 2) they represent an integral, although incidental part of the covered physician's service, and 3) they are a kind of service commonly furnished in the physician's office, and 4) the services of non-physicians are included on the physician's bills.63 However, if the PA or NP has performed the service under some indirect level of supervision, and the necessary supervision requirements have not been met, the services are billed under a PA's or NP's own UPIN. Here the fiscal intermediary will typically reimburse only 85% of the amount that would have been paid if the same service was billed as "incident to."
Billing Appropriately. In United States ex rel. Walker v. R & F Props. of Lake County, Inc, 64 the plaintiff, a qui tam relator (or "whistleblower"), sought recovery on behalf of the United States pursuant to the False Claims Act, 31 U.S.C. § 3729. The relator nurse alleged that the medical center had knowingly filed false claims for Medicare reimbursement when it billed Medicare for services rendered by NPs and PAs as if rendered "incident to the service of a physician," although the services did not meet the necessary criteria. The appellate court overturned a trial court's ruling to limit discovery and found genuine issues of fact in the allegations; it remanded the case for review on appeal.
The level of documentation must clearly support the level of supervision billed. In Polanco v. Commissioner of the Dep't of Social Servs,65 the court found substantial evidence to support the finding that a physician failed to adequately document the medical necessity for Medicaid services. Although the physician reviewed the medical charts upon which the PA orders were based, it was the PA who wrote routine orders for laboratory tests and prescriptions. Thereafter, all billing was submitted under the physician's name and UPIN number. The reviewing court found the physician was responsible for the services provided by his PA and failed to find an appropriate level of supervision. The Commissioner of the Department of Social Services subsequently made a finding against the physician, excluded him from participation in the Medicaid program for five years, and imposed applicable monetary penalties.
Conclusions
Midlevel providers function as extensions of supervising physicians and require an appropriate level supervision in their duties. Although, at times, it may appear that a medical problem is well within the scope of expertise of the physician extender by training, experience, or habit, it is the responsibility of the supervising physician to ensure that the standards of medical care, documentation, and claim submission are met.
Multiple levels of liability may be imposed on physician extenders that include a supervising physician, as well as institutional liability. Especially in case of physician extenders practicing in the ED, agency theory imputes liability to both the supervising physician and the institution.
Potential areas of liability that are yet infrequent include claims against physicians and institutions for abetting in the unauthorized practice or medicine and explicit or apparent misrepresentation by physician extenders assumed to be physicians. Untested potential areas of civil liability might stem from evidentiary exclusions in criminal cases where physician extenders unknowingly violate statute.
Finally, physicians must take precautions to submit claims appropriately to both CMS and private payers for services provided by physician extenders to avoid false claims liability. With these caveats in mind, the collaborative practice of medicine can improve the availability of medical services, improve the quality of the medical experience and patient satisfaction, and perhaps help to control rising health care costs.
Endnotes
1. See Wilson KA, Burke CS, Priest HA, Salas E. Promoting health care safety through training high reliability teams. Qual Saf Health Care. 2005:14:303-9. See also Durbin CG Jr. Team model: advocating for the optimal method of care delivery in the intensive care unit. Crit Care Med. 2006:34(3 Suppl):S12-7.
2. For an extensive summary of each state's laws and regulations relating to physician assistants see: www.aapa.org/gandp/StateLawsandRegulations.htm. Accessed May 2006.
3. New York Public Health Law, art 37; L 1971, ch 1135, § 1.
4. Citing 10 NYCRR § 94.2(b) (2006).
5. See Delman JL. The use and misuse of physician extenders. Aiding and abetting the unauthorized practice of medicine. J Leg Med. 2003;24(3):249-80.
6. Reynolds v. Medical & Dental Staff of Andrus Pavillion etc., 86 Misc. 2d 418 (N.Y. Misc. 1976).
7. See American Academy of Physician Assistants Web site. Available at: http://www.aapa.org/gandp/statelaw.html and also http://www.aapa.org/gandp/StateLawsandRegulations.htm. Accessed June 17, 2006.
8. Id.
9. Wash. State Nurses Asso v. Bd. of Medical Examiners, 93 Wn.2d 117 (Wash. 1980).
10. Central Anesthesia Associates P.C. v. Worthy, 173 Ga. App. 150 (Ga. Ct. App. 1984).
11. Citing O.C.G.A. § 43-26-9 (b) (2006).
12. Central Anesthesia Associates, P.C. v. Worthy, 254 Ga. 728 (Ga. 1985).
13. Central Anesthesia Associates P.C. at 153 citing Potts v. Fidelity Fruit & Produce Co., 165 Ga. App. 546, 547 (Ga. Ct. App. 1983).
14. Id at 153.
15. Id at 155.
16. Many states permit a nurse practitioner to prescribe only pursuant to protocol: Florida, Michigan, Mississippi, Nevada, New Hampshire, New Mexico, New York, North Carolina, Utah and Vermont. A number of states have clearly articulated the need for a collaborative agreement with a physician before an NP may prescribe or treat. See ARIZ. REV. STAT. ANN. § 32-1601 7.(e) (1986); ARIZ. COMP. ADMIN. R. & REGS. R4-19-504 (1987) (regulations requiring the applicant to submit in her application "a plan of accountability between the registered nurse practitioner and collaborating physician regarding the prescribing and dispensing of drugs."); see also 1989 Conn. Acts 389 (Reg. Sess.); See also D.C. CODE ANN. §§ 2-3306 .1, .2, .4, .7 (1986); see also 17, §§ 5907.1 -.4, 5910.4 (1989); See also FLA. STAT. ANN. § 464.003(3)(c) (West 1987) ("The regulations further require the written protocol to contain a "collaborative practice agreement," which specifies "the drug therapies that the ARNP may prescribe, initiate, monitor, alter, or order."); see also STATE OF IDAHO BOARD OF NURSING, MINIMUM STANDARDS, RULES AND REGULATIONS FOR NURSE PRACTITIONERS, Title 3, Chapter D — Nurse Practitioners, sec. 8., a. (Feb. 12, 1980)( requiring the NP's application for prescriptive authority to contain a "signed statement from the supervising physician certifying that, in the opinion of the supervising physician, the nurse practitioner is qualified to prescribe the drugs for which the nurse practitioner is seeking approval and authorization."); See also ME. REV. STAT. ANN. tit. 32, § 2102 (1988); See also MD. HEALTH OCC. CODE ANN. § 7-101(f) (1986)(regulations defining "written agreement" as "the development and implementation of a written agreement between an NP and a licensed physician concerning the performance of the functions authorized by these regulations."); MASS. GEN. L. ch. 112, § 80E (1988) addresses the authority of NPs to write prescriptions under a supervising physician and also limits the NP's authority to certain patients and settings; See also OP. MICH. ATT'Y GEN. 5630 Jan. 22, 1980); See also MISS. CODE ANN. § 73-15-5(2) (Supp. 1988) and MISSISSIPPI BOARD OF NURSING, STANDARDS OF PRACTICE FOR FAMILY NURSE PRACTITIONERS IN THE STATE OF MISSISSIPPI, § II. A, B (requiring an NP to prescribe pursuant to a protocol mutually agreed upon by the NP, the supervising physician, and, if appropriate, the employing agency); See NEB. REV. STAT. § 71-1721.0l (1988) (limiting an NP's scope of practice to that defined in the nurse practitioner's practice agreement); See NEV. REV. STAT. ANN. § 632.237 1. (Michie Supp. 1988)("An advanced practitioner of nursing may engage in selected medical diagnosis and treatment pursuant to a protocol approved by a collaborating physician. A protocol must not include and an advanced practitioner of nursing shall not engage in any diagnosis, treatment or other conduct which the advanced practitioner of nursing is not qualified to perform.); See N.H. REV. STAT. ANN. § 326-B:10 II. (Equity Supp. 1988)("An A.R.N.P. who functions in connection with protocols established jointly with a collaborative physician may prescribe medications from the official formulary which has been jointly agreed upon by the board of registration in medicine and the board of nursing."); See N.M. STAT. ANN. § 61-3-3 (1978); See also 1988 N.Y. Laws 257; PA. STAT. ANN. tit. 63, § 1212 (Purdon Supp. 1989); See S.D. CODIFIED LAWS ANN. § 36-9A-5 (1986); See TENN. CODE ANN. § 63-7-123 (1987); See UTAH CODE ANN. §§ 58-31a-1 to 58-31a-6 (1988); See VT. STAT. ANN. tit. 26, § 1572 (2)(E) (Supp. 1988); WIS. STAT. ANN. § 441.11 (4) (West 1988).
17. See http://www.acep.org/webportal.
18. See ACEP Web site Available at: http://www.acep.org/webportal/PracticeResources/issues/reimb/faqs/midlevprovfaq.htm.
19. See Guidelines on the Role of Physician Assistants in the Emergency Department, last approved by the ACEP Board of Directors February 2002, (Policy #400117, Approved February 2002). Available at: http://www.acep.org/webportal/PracticeResources/PolicyStatements/hlthwrkforce/GuidelinesRolePhysicianAssistantsED.htm Accessed June 17, 2006.
20. See Guidelines on the Role of Nurse Practitioners in the Emergency Department, last approved by the ACEP Board of Directors June 2000. (Policy #400123, Approved June 2000). Available at: http://www.acep.org/webportal/PracticeResources/PolicyStatements/hlthwrkforce/GuidelinesontheRoleofNursePractitionersintheED.htm. Accessed June 17, 2006.
21. Id.
22. Id.
23. Beall v. Curtis, 603 F. Supp. 1563 (D. Ga. 1985).
24. Citing to 29 CFR § 800.125 (1977).
25. Citing to 29 CFR § 800.127 (1977).
26. Citing to 29 CFR § 800.130 (1977).
27. Id.
28. Id.
29. Beall at 1578.
30. The "ostensible" or "apparent" agency theory is based on Section 429 of the Restatement (Second) of Torts (1965): general or regular employee of one employer may become the borrowed employee of another with respect to some activities. Whether this has in fact occurred hinges on whether the other employer or its agents have the right to direct and control the employee with respect to the details of the particular work at issue An employee ceases to be an employee of his general employer if he becomes the borrowed employee of another. One who would otherwise be in the general employment of one employer is a borrowed employee of another employer if such other employer or his agents have the right to direct and control the details of the particular work inquired about. If an employee of one becomes the borrowed employee of another, he is no longer considered an employee of the general employer for vicarious liability purposes.
31. See Porubiansky v. Emory University, 275 S.E.2d 163, 168 (1981); See also Paintsville Hospital v. Rose, 683 S.W.2d 255, 257 (1985); Mehlman v. Powell, 378 A.2d 1121 (1977); Grewe v. Mt. Clemens General Hospital, 273 N.W.2d 429, 432-33 (1978); Arthur v. St. Peters Hospital, 405 A.2d 443 (1979); Hannola v. City of Lakewood, 426 N.E. 2d 1187, 1192 (1980); Adamski v. Tacoma General Hospital, 579 P.2d 970, 977 (1978).
32. See Prosser & Keeton on Torts, § 70, at 501 (W.P. Keeton 5th ed. 1984)
33. See Janulius and Hornstein, Hospital's Liability for Physician's Malpractice, 35 Def. F. J. 541, 547-48 (Sept. 1986).
34. See Bing v. Thunig, 143 N.E.2d 3, 9, (. 1957); See also Weldon v. Seminole Municipal Hospital, 709 P.2d 1058, 1059 (1985).
35. See Greene v. Rogers, 498 N.E.2d 867, 871, (1986); See also Hill v. St. Clare's Hosp., 490 N.E.2d 823, 827, (1986).
36. See Tucson Medical Center v. Misevch, 545 P.2d 958, 960 (Ariz. 1976); See also Darling v. Charleston Community Mem. Hosp., 211 N.E.2d 253 (1965); Pedroza v. Bryant, , 677 P.2d 166, 170 (1984); Johnson v. Misericordia Community Hosp., 301 N.W.2d 156 (1981).
37. Matthew Bender & Company, Inc., Treatise on Health Care Law 3-12. Chapter 12: Medical Malpractice § 12.02 LexisNexis Group. 2005.
38. Marchisotto v. Williams, 2006 NY Slip Op 50774U, 7 (N.Y. Misc. 2006)
39. Id at 7.
40. Rockefeller v. Kaiser Found. Health Plan, 251 Ga. App. 699, 700 (Ga. Ct. App. 2001).
41. Id.
42. Id.
43. Id.
44. Cook v. Reisner, 295 A.D.2d 466 (N.Y. App. Div. 2002).
45. Id.
46. Id.
47. Rivera v. County of Suffolk, 290 A.D.2d 430 (N.Y. App. Div. 2002)
48. Quirk v. Zuckerman, 196 Misc. 2d 496 (N.Y. Misc. 2003).
49. Quirk at 498
50. Quirk at 499
51. Quirk, citing Raptis-Smith v St. Joseph's Med. Ctr., 302 A.D.2d 246, (2003).
52. Quirk citing Nestorowich v Ricotta , 767 N.E.2d 125 (2002).
53. Monahan v. Obici Med. Mgmt. Servs., 59 Va. Cir. 307, (Va. Cir. Ct. 2002)
54. Monahan at 314
55. People v. Reynolds, 307 A.D.2d 391 (N.Y. App. Div. 2003); appeal den'd People v. Reynolds, 807 N.E.2d 908 (2003).
56. State v. Sliwinski, 2003 WI App 188 (Wis. Ct. App. 2003)
57. Matter of Mary Jane P., 2005 NY Slip Op 25370, 1 (N.Y. Misc. 2005)
58. Matter of Mary Jane P at 3.
59. People v. Covington, 19 P.3d 15 (Colo. 2001).
60. See Colo. Rev. Stat. §13-90-107(1)(d) (2000).
61. See Colo. Rev. Stat. § 12-36-106(5) (2000).
62. See 42 C.F.R. §§ 410.10, 410.26 (2006).
63. See HCFA Form 1500.
64. United States ex rel. Walker v. R & F Props. of Lake County , Inc., 433 F.3d 1349 (11th Cir. 2005).
65. Polanco v. Commissioner of the Dep't of Social Servs., 212 A.D.2d 443 (N.Y. App. Div. 1995).
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