Employing Advanced Practice Providers: Balancing Benefits and Potential Malpractice Risks

Advanced practice providers (APPs)—mainly nurse practitioners (NPs) and physician assistants (PAs)—can be found in a wide variety of specialty areas and clinical settings, including hospitals, outpatient clinics, and rural community centers. The APP is an important and integral member of the healthcare team, assisting physicians in providing a wide range of healthcare services. Practices and hospitals that employ APPs can experience many benefits, such as lower operating overhead, increased physician time with patients, and improved patient education and satisfaction. However, employers of APPs should consider implementing effective risk management measures to help ensure that the benefits of using APPs are not at the expense of increased liability exposure.

The role of APPs has broadened substantially since the first training programs were created in response to a physician shortage approximately 40 years ago. The number of PAs in the United States has increased 36.4 percent over the last five years,1 and the number of NPs has doubled in the past 10 years.2 APPs now perform both routine and complicated medical services for hospitals and medical practices across the country. They improve patient access to healthcare, particularly with the increase in patients due to the Affordable Care Act.

An APP is often covered under the physician’s or hospital’s malpractice insurance policy under vicarious liability coverage. APPs can be held directly liable for their own acts or omissions, but, in addition, under the legal theory of vicarious liability, physicians and hospitals can also be held liable for the actions of their employees, including APPs. Therefore, the physician or hospital is often named in malpractice claims involving their APPs.

According to closed claims data compiled by The Doctors Company and the PIAA, most malpractice claims attributed to APPs can be traced to clinical and administrative factors that potentially could have been identified and remedied by the employing physician or hospital, including:

  • Operating outside of the APP’s scope of practice.
  • Inadequate physician supervision of the APP.
  • Absence of written protocols.
  • Deviation from written protocols.
  • Failure and delay in seeking referral or physician collaboration.

The following is an example of a claim involving an APP:

A 53-year-old female underwent a laparoscopic cholecystectomy, which was performed without incident by the insured general surgeon. The surgeon saw the patient three days post-op, noting that she was doing well and had no complaints other than the expected incisional pain. The patient was next seen at five days post-op by the surgeon’s PA. The PA noted an obvious infection at the umbilical surgical wound. He obtained a culture (which was later proved to be Klebsiella) and started the patient on Levaquin, an antibiotic. The patient returned four days later and was reevaluated by the surgeon, who noted that the wound still looked infected, with the presence of drainage. The surgeon felt that the patient had cellulitis, continued the antibiotic, and advised her to return if needed. A week later the patient returned and was seen by the PA. She complained of recent onset of nausea, vomiting, and diarrhea and had a temperature of 103 degrees. Although the PA noted that the wound still appeared infected, because the patient’s abdomen was not tender and no masses were felt, he diagnosed the patient as having a “superficial wound infection” and “gastroenteritis.” The PA told the patient to continue the Levaquin and prescribed Phenergan for the nausea and vomiting. Three days later, the patient was admitted through the ER with an acute abdomen. She underwent exploratory surgery and was diagnosed with an intrahepatic abscess. The patient then developed disseminated intravascular coagulopathy, continued to deteriorate, and expired several days later. Suit was filed against the insured, the PA, and the insured’s medical practice. The primary issue was the failure to diagnose and treat the intrahepatic abscess. Defense experts could not support the PA’s failure to properly assess the patient when she presented with obvious clinical signs of infection. The PA was criticized for failing to consult with the surgeon. The surgeon, who signed off on the PA’s medical management of the patient, was held vicariously liable for the acts of the PA and directly negligent for his inadequate supervision of the PA.

To help decrease liability risks, the employing physician or hospital should have a written policy outlining the APP’s scope of practice. This policy should be signed by the APP and other staff members annually. In putting together this policy, it is important to know the laws in your state that govern the scope of practice of APPs. For example, supervision of an NP by a licensed physician is not required in certain practice settings in some states, which allows NPs to practice independently. Although supervision may not be required, most NPs practice under the guidance of a licensed physician. PAs, however, are only allowed to practice under a supervising physician.

Other suggestions to decrease liability risks include:

  • Ensure that all newly hired APPs undergo orientation with the practice or hospital.
  • When scheduling appointments, staff should inform patients when they are being scheduled with an APP. If that patient requests to see his or her physician, the staff should provide the patient with that option.
  • Make certain APPs wear identification that indicates their name and their job title.
  • Develop treatment guidelines and clinical triggers for physician consultation. Meet with the APPs regularly to discuss their roles and expectations within the practice, and document these meetings.
  • Regularly review the charts, including prescription monitoring, of patients seen by the APPs.
  • Make sure that all staff members, including APPs, have adequate professional liability coverage. For nonemployed APPs, liability coverage should be equal to what the physician or practice carries.

Because APPs can be full partners with physicians in malpractice litigation, it is imperative that medical practices and hospitals design purposeful measures to reduce risks. Employers of APPs should work with their APPs to initiate meaningful changes that will potentially protect the healthcare team from liability risks, reduce adverse events, and promote patient safety.

To read more case studies about employing APPs and for detailed risk management checklists, download The Doctors Company’s guide to an APP preventive action and loss prevention plan.
 

References

  1. 2014 Statistical Profile of Certified Physician Assistants. National Commission on Certification of Physician Assistants. https://www.nccpa.net/uploads/docs/2014StatisticalProfileofCertifiedPAsPhysicianAssistants-AnAnnualReportoftheNCCPA.pdf. Accessed May 18, 2015.
  2. Auebach DI. Will the NP workforce grow in the future? New forecasts and implications for healthcare delivery. Med Care. 2012 Jul;50(7):606-10.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

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