Avoid legal pitfalls when hiring physician extenders

In the Courts. By Tanya Albert, amednews staff. July 14, 2003.

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As physicians look for ways to see as many patients as possible, nurse practitioners and physician assistants are finding their ways into physician offices in greater numbers than ever before.

According to the American Academy of Physician Assistants, there were 46,002 physician assistants in the United States in the beginning of 2003, a nearly 110% increase since 1993. In March 2000, there were an estimated 102,829 nurse practitioners, according to the Nurse Practitioner Alternatives in Education, Inc.

But along with added help comes added liability for the physician.

American Medical News talked to Raymund C. King, MD, an otorhinolaryngologist who practiced medicine for 10 years before obtaining his law degree. He's now a litigator and transactional attorney for the Dallas law firm of Cowles & Thompson, PC, primarily representing physicians and hospitals. Here's what he had to say about the issue of physicians' liability for their allied health professionals.

Question: To start, what are some of the legal differences between a nurse practitioner and a physician assistant of which physicians should be aware?

Answer: A nurse practitioner's scope of practice varies state by state. In many states, they are allowed to practice independently, without a doctor. They generally are involved with primary health care, assessing and diagnosing common illnesses and managing chronic, stable conditions. Nurse practitioners can order EKGs and x-rays in many states. However, nurse practitioners often practice under the guidance of a licensed physician.

Physician assistants are licensed to practice medicine under a physician's supervision and can practice only under a physician's license. They can conduct physician exams, diagnose and treat illnesses, order and interpret tests and can write prescriptions in most states.

Q: When do doctors generally find themselves brought into a lawsuit for treatment that a nurse practitioner provided?

A: The times I see doctors get in trouble is if they have a nurse practitioner working for them and the NP doesn't identify herself or himself as a nurse practitioner. The argument comes down to the fact that the NP was acting like a physician, and the patient relied on his or her advice or treatment as if that individual was a physician.

Q: What is the best way for a physician to avoid being legally liable for something a nurse practitioner does and is then sued for?

A: Generally, it is a good idea to hire the nurse practitioner as an independent contractor. Even then, the fact that the NP is working in the physician's office may form the basis for liability. From a legal standpoint, it is a little easier to defend a lawsuit if the nurse practitioner is an independent contractor. Anytime you have someone working as an employee, you can be held vicariously liable.

In any event, the physician should be fully aware of the clinical expertise of every "physician extender" delivering care in his or her office. In addition, there should be adequate notice to patients that a particular individual or individuals are independent contractors that are not under the physician's control.

Q: Does the same hold true when hiring a physician assistant?

A: Yes and no. Yes, in the sense that the physician should be fully aware of the clinical expertise of the physician assistant delivering care in his or her office. No, in the sense that there is no legal advantage to hiring a PA as an independent contractor because the physician assistant can only practice medicine under a licensed physician. Consequently, care that a PA provides is, by nature, tied to the physician who hired the physician assistant.

Q: So how should physicians safeguard themselves legally when working with a physician assistant?

A: Get to know the PA's clinical skills and expertise. Watch him or her interact with and evaluate your patients. Review charts. Physicians often get into trouble when they sign off on everything a PA does without reviewing the chart or without examining the patient when they are unaware of the PA's clinical competence or expertise. The bottom line: How much do you, the physician, trust that person's clinical expertise?

Q: Any other things to be aware of?

A: Yes. If a physician assistant is registered with the state to work under your license, but not registered to work under your partner's license, don't let the PA see your partner's patients until he or she is registered under your partner's license, too.

In one recent Texas case, a physician was named in a lawsuit even though the individual filing the suit was not his patient.

The physician assistant was seeing someone else's patient, but the PA was only licensed to practice medicine under the defendant physician's medical license. Although the PA had already applied to work under the second doctor, the state hadn't finished processing the application.

The case settled, but the take-home message is to disallow your physician assistant from seeing another physician's patients if he or she isn't registered to work under that other physician's license.

Q: In closing, what do you see as the key things for doctors to think about when they hire and work with nurse practitioners or physician assistants?

A: First, before you employ anyone, it is always a good idea to do a criminal background check and licensure check. Anyone you hire that might be taking care of patients is always a potential liability.

For example, there was a case where a hospital unknowingly hired a sex offender. The background check was performed during the "lag" period between the time the criminal information was reported and the time it was posted such that the background check turned up "clean." Two years into the person's employment, a female patient was raped. The woman named the hospital in the lawsuit, but the hospital was in a good position to defend itself because it performed the background check. Legally, it would have been a more difficult case to defend if the hospital had not done a background check.

Second, from a liability standpoint, a physician is generally better off employing physician extenders as independent contractors. There is probably no legal advantage to hiring a PA as an independent contractor.

Third, observe nurse practitioners or physician assistants closely initially and expand their responsibilities only as you become more familiar with their level of expertise. They are physician extenders to help care for patients, but they are also physician extenders of liability.

Albert is a staff writer covering legal issues.