Increased Liability for Physicians over NP’s and PA’s

In today’s busy medical practice, more and more medical providers are choosing to utilize the services of physician assistants and nurse practitioners to meet the needs of their patients. Those who elect to do so, however, should be aware of the applicable legal requirements with regard to supervising such mid-level providers and the potential exposure that results from a physician’s failure to adequately do so. This Newsletter is devoted to two noteworthy decisions that Tennessee appellate courts have rendered in the past year that affect the potential liability of “supervising” physicians.

In Cox v. M.A. Primary and Urgent Care Clinic, (June 21, 2010), the Tennessee Supreme Court declared for the first time that a supervising physician can be held vicariously liable for the negligence of his or her physician assistant even if the physician never saw or treated the patient. This means that the physician may automatically be held liable if the physician assistant is found to have been negligent. The Court focused its attention on the provisions of the Tennessee Code providing that physician assistants are statutorily authorized to perform only selected medical services under the supervision of a licensed physician and that “supervision requires active and continuous overview of the physician assistant’s activities to ensure that the physician’s directions and advice are in fact implemented, but does not require the continuous and constant physical presence of the supervising physician.” The Court also emphasized sections of the Tennessee Rules and Regulations specifying that written protocols “are required,” that they “shall outline and cover the applicable standard of care,” and that “the supervising physician shall be responsible for ensuring compliance with the applicable standard of care.”

After citing the applicable statutory law, the Court held that where a medical doctor delegates certain responsibilities to his or her physician assistant, the physician assistant occupies the role of agent and the supervising doctor occupies the role of principal. Therefore, the Court found that the physician in that case could be held vicariously liable for the physician assistant’s negligence, if proven, regardless of the physician’s involvement (or lack thereof) in the patient’s treatment. This same reasoning could potentially be used by Tennessee courts regarding physician supervision of nurse practitioners or other physician-extenders. The result is that a physician will no longer be able to argue that while the P.A. or N.P. may have been negligent, he or she was not.

In another recent case, Watkins v. Affiliated Internists, (Dec. 29, 2009), the Tennessee Court of Appeals found that a physician’s violation of the Tennessee Rules and Regulations regarding supervision of a physician assistant can give rise to a claim of negligence per se, meaning that a plaintiff need not introduce expert testimony to show that the physician breached the applicable standard of care in order to prove this element of his or her case. Specifically, the Court found that a violation of the regulation requiring the supervising physician to make a personal review of the chart on any patient for whom the physician assistant prescribes a controlled substance within ten days amounts to “a legislative judgment as to the standard of care.” Consequently, a physician’s failure to explicitly abide by the regulation’s requirements automatically means that he or she fell beneath the standard of care with respect to that patient’s treatment. In order to prevail on a malpractice claim, however, the plaintiff must still prove that the physician’s violation of the regulation was the proximate cause of the alleged injuries (i.e. if the physician had reviewed the chart as required, he or she would have noticed the assistant’s alleged mistake and been able to correct it in time to prevent the alleged injury and damages).

In light of Cox and Watkins, medical providers utilizing physician assistants and nurse practitioners should familiarize themselves with the applicable regulations defining clinical supervision requirements, which may be found at the following web addresses:

http://state.tn.us/sos/rules/0880/0880-03.20100620.pdf (physician assistants);

http://state.tn.us/sos/rules/0880/0880-06.pdf (nurse practitioners).

Furthermore, medical providers supervising any type of physician extenders should ensure that they are fulfilling all obligations set forth in Tennessee statutes and regulations. Failure to do so could increase the chances of a malpractice lawsuit and adverse verdict.

For additional information on this Physicians article, please contact:

Casey Smith

(731) 426-8122

csmith@raineykizer.com

Source: Rainey, Kizer, Reviere & Bell

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