How Does a Plaintiff Attorney Make Case Against Supervising EP?

Claims involving advanced practice providers (APPs), such as physician assistants (PAs) and nurse practitioners (NPs), caring for ED patients are on the rise, according to medical and legal experts who recently spoke to ED Legal Letter.

One reason is the changing landscape of healthcare delivery, says Richard Cahill, Esq., vice president and associate general counsel at The Doctors Company, a Napa, CA-based medical malpractice insurance company.

“This has been driven by many factors — changes in reimbursement, new modes for delivering treatment (including the advent of managed care), and significant federal legislation,” Cahill says.

This includes the Health Insurance Portability and Accountability Act, the Emergency Medical Treatment and Labor Act, and more recently, the Patient Protection and Affordable Care Act.

“Within that context, a critical need has been created for APPs, especially PAs and NPs, to render care against the backdrop of traditional medicine,” Cahill explains.

Here are questions involving some of the central liability concerns Cahill sees:

• Have advanced practice providers received the appropriate degree of professional responsibility in light of their education, training, and experience?
• Is the practitioner operating or functioning within the acceptable scope of practice?
• Is there adequate physician oversight to ensure the patient receives care that is at least consistent with the prevailing community standard? (“Physician supervision is a critical component of the process,” Cahill notes.)
• Has the ED developed clear and appropriate written protocols, setting forth the nature and extent of all providers’ level of responsibility?
• Are the ED’s protocols consistent with applicable laws, as well as the community standard?
• Is the practice performing adequate internal monitoring and auditing on a routine basis to confirm written protocols are followed?
• If there is a deviation, are steps taken to achieve compliance?
• Do medical practitioners routinely evaluate whether their advanced practice providers are seeking physician input, through either referrals or direct collaboration, in a timely fashion?

If an adverse event occurs, Cahill says a patient may file a suit seeking damages for alleged professional liability directly against the advanced practice provider, his or her supervisor, the practice group, and even against the facility that administered the questionable care.

“In court, the patient has a heavy evidentiary burden to prove by a preponderance of the evidence the four components of a prima facie case for medical negligence,” Cahill explains.

These are:

• A professional relationship existed between the provider and the plaintiff, requiring the exercise of due care consistent with the community standard;
• There was a breach of that duty;
• The alleged breach was causally related to the claimed injury;
• The patient has sustained compensable damages.

Policies and procedures that govern the relationship between the APP and the supervising EP are important, according to Laura Pimentel, MD, vice president/chief medical officer at Maryland Emergency Medicine Network in Baltimore.

“Where EPs get into trouble is where there is lack of specificity about the relationship between the APP and the attending,” she adds. “And you have to do more than write a policy — you have to make sure that people are aware of it and are following it.”

In Maryland, PAs can provide care without consulting an EP, but there has to be an EP available for consultation.

“When a PA sees a patient, the attending EP can either sign the chart, or not,” Pimentel says. “It is extremely important for the EP to be specific about participation in the case.”

This can range from a note that the EP was available for consultation, but did not see the patient, to the EP assuming full responsibility for the evaluation and treatment of the patient.

Pimentel believes it is less likely for an EP to be named in a case if his or her name does not appear on the chart. The defense can argue that the EP never had a professional relationship with the patient if the EP was never consulted and never saw the patient.

“The EP was compliant with the law because he or she was available — and if the APP didn’t consult the physician, the EP is on much firmer ground for being released,” Pimentel explains.

She recommends EPs sign charts in cases in which they participated in the care, and document their involvement and impressions.

What the ED policy says about which patients the EP is required to see can become important during litigation.

“We chose to keep our supervision policy less rigid, so that it can be applied to individual patients in a manner that maximizes the skills and judgment of APPs and EPs,” Pimentel says.

The ED’s policy doesn’t specify triage levels or chief complaints that EPs must confront. It simply states the supervising EP should see complex or acutely ill patients.

One advantage to this is that it is more difficult for a plaintiff attorney to allege that the ED failed to follow its own policy.

“Of course, this is not completely protective,” Pimentel acknowledges. “A plaintiff attorney could allege that the patient was acutely ill or complex, and therefore should have been seen by the EP.”

Many Ways to Keep EP in Case

Cahill says liability for alleged professional negligence against APPs may be based on:

• miscommunication;
• delays in diagnosis, referral, or treatment;
• providers rendering care outside the parameters of their licensing or scope of delegation;
• failure to follow established protocols;
• neglecting to seek physician collaboration under the circumstances in question.

“In litigation, plaintiffs’ attorneys often argue alternative theories of liability,” Cahill says.

For example, in the context of APPs, the patient may allege that the employer, whether a solo physician, a group, or a facility such as a clinic, hospital, ED, or surgery center, is responsible based on the legal theories of vicarious liability, negligent hire, training or supervision, or negligent credentialing.

“Advanced practice providers are regulated to a large extent by the states,” Cahill notes.

State law varies on topics such as qualifications, licensing, renewal, discipline, and continuing education. The applicable rules, depending on the jurisdiction, exist in state statutes, administrative codes, or rules promulgated by state agencies.

“We encourage physicians to check the rules and regulations in their jurisdictions to better ensure compliance,” Cahill cautions.

Similarly, various jurisdictions dictate the responsibilities of supervising physicians. These may include the methods of oversight, such as in-office accessibility as opposed to remote supervision.

“It is critical that physicians know their legal obligations in the state or states where they practice,” Cahill stresses.

To reduce legal risks involving APPs, Cahill says practices should:

• Create a protocol that allows staff to check and document credentialing.
• Develop written position descriptions, and revise these in a timely manner as dictated by the circumstances.
• Draft appropriate policy and procedure manuals.

“Keep in mind that those manuals are generally discoverable in the event of litigation,” Cahill warns.

Plaintiff’s counsel often will try to determine whether policies and procedures contained in manuals were consistent with the prevailing community standard, and whether they were appropriately followed in the particular case at hand.

• Clearly specify the nature and extent of the role and duties of the supervising EP.
• Maintain up-to-date Delegation of Duty or Oversight Agreements.

“It is essential physicians and advanced practice providers work as a team, properly document the medical record, and maintain effective communication with other members of the team as well as with the patient, and where appropriate, the patient’s family,” Cahill says.

Some supervising EPs routinely sign off on the charts of patients under APP care, regardless of whether they were consulted or involved in any way with the patient’s care.

“Some ED physician groups and hospitals encourage EPs to sign charts in this manner because of the financial implications,” Pimentel notes.

Pimentel is aware of a case in which an APP missed a septic joint in a patient presenting with knee pain.

“The patient was not seen by the EP — but the chart was signed. The supervising EP was held liable,” she says.

Some employment structures link compensation to productivity.

“This creates incentive for EPs to sign charts to increase relative value units and boost productivity,” Pimentel notes. The Centers for Medicare & Medicaid Services reimburses APPs 85% of the physician fee. If the attending EP signs the chart, the ED group or hospital may receive 100% of the physician fee.

“It’s unethical to sign charts for billing purposes if the physician didn’t provide any care. But there are also legal implications,” Pimentel warns.

Any chart an EP signs should make clear what his or her involvement was in the care of that patient, she advises.

“A large source of liability is signing the chart without properly supervising the care,” Pimentel adds. “There may be financial incentive to do that, but it is not worth the significant liability exposure.”

SOURCES

• Richard Cahill, Esq., Vice President and Associate General Counsel, The Doctors Company, Napa, CA. Phone: (800) 421-2368 ext. 4202. Fax: (707) 226-0370. Email: [email protected].
• Laura Pimentel, MD, Vice President/Chief Medical Officer, Maryland Emergency Medicine Network, Baltimore. Email: [email protected].