Malpractice Risks for Docs Who Oversee NPs or PAs

Court cases show that physicians continually underestimate their liability in supervising nurse practitioners (NPs) and physician assistants (PAs).

Even in states that have abolished requirements that NPs be physician-supervised, physicians may still be liable by virtue of employing the NP, according to William P. Sullivan, DO, an attorney and emergency physician in Frankfort, Illinois.

Indeed, the vast majority of lawsuits against NPs and PAs name the supervising physician. According to a study of claims against NPs from 2011 to 2016, 82% of the cases also named the supervising physician.

Employed or contracted physicians assigned to supervise NPs or PAs are also affected, Sullivan said. "The employed physicians' contract with a hospital or staffing company may require them to assist in the selection, supervision, and/or training of NPs or PAs," he said. He added that supervisory duties may also be assigned through hospital bylaws.

"The physician is usually not paid anything extra for this work and may not be given extra time to perform it," Sullivan said. But still, he said, that physician could be named in a lawsuit and wind up bearing some responsibility for an NP's or PA's mistake.

In addition to medical malpractice suits, Sullivan said state licensure boards often sanction doctors for improperly supervising NPs and Pas. Licensure boards often require extensive protocols for supervision of NPs and PAs.

Yet More States Are Removing Supervision Requirements

With the addition of Kansas and New York in 2022 and Utah in 2023, 27 states no longer require supervision for all or most NPs. Sixteen of those states, including New York and California, have instituted progressive practice authority that requires temporary supervision of new NPs but then removes supervision after a period of 6 months to 4 years, depending on the state, for the rest of their career.

"When it comes to NP independence, the horse is already out of the barn," Sullivan said. "It's unlikely that states will repeal laws granting NPs independence, and in fact, more states are likely to pass them."

PAs, in contrast, are well behind NPs in achieving independence, but the American Academy of Physician Associates (AAPA) is calling to eliminate a mandated relationship with a specific physician. So far, North Dakota and Rhode Island have ended physician supervision of PAs, while California and Hawaii have eliminated mandated chart review, according to the AAPA. Other states are considering eliminating physician supervision of PAs.

In states that have abolished oversight requirements for NPs, "liability can then shift to the NP when the NP is fully independent," Cathy Klein, an advanced practice registered nurse who helped found the NP profession 50 years ago, told Medscape. "More NPs are starting their own practices, and in many cases, patients actually prefer to see an NP."

As more NPs became more autonomous, the average payment that NPs incurred in professional liability lawsuits rose by 10.5% from 2017 to 2022, to $332,187, according to the Nurses Service Organization (NSO), a nursing malpractice insurer.

The number of malpractice judgments against autonomous NPs alone has also been rising. From 2012 to 2017, autonomous NPs' share of all NP cases rose from 7% to 16.4%, the NSO reported.

The good news for physicians is that states' removal of restrictions on NPs has reduced physicians' liability to some extent. A 2017 study found that enacting less restrictive scope-of-practice laws for NPs decreased the number of payments made by physicians in NP cases by as much as 31%.

However, the top location for NP payouts remains the physician's office, not the autonomous NP's practice, according to the latter NSO report. Plaintiffs sue NPs' and PAs' supervising physicians on the basis of legal concepts, such as vicarious liability and respondeat superior. Even if the physician-employer never saw the patient, he or she can be held liable.

Court Cases in Which Supervising Physician Was Found Liable

There are plenty of judgments against supervising or collaborating physicians when the NP or PA made the error. Typically, the doctor was faulted for paying little attention to the NP or PA he or she was supposed to supervise.

Sullivan points to a 2016 case in which a New York jury held a physician 40% liable for a $7 million judgment in a malpractice case involving a PA's care of a patient in the emergency department (ED). The case is Shajan v South Nassau Community Hospital in New York.

"The patient presented with nontraumatic leg pain to his lower leg, was diagnosed by the PA with a muscle strain, and discharged without a physician evaluation," Sullivan said. The next day, the patient visited an orthopedist who immediately diagnosed compartment syndrome, an emergent condition in which pressure builds up in an affected extremity, damaging the muscles and nerve. "The patient developed irreversible nerve damage and chronic regional pain syndrome," he said.

A malpractice lawsuit named the PA and the emergency physician he was supposed to be reporting to. Even though the physician had never seen the patient, he had signed off on the PA's note from a patient's ED visit. "Testimony during the trial focused on hospital protocols that the supervising physician was supposed to take," Sullivan said.

When doctors share fault, they frequently failed to follow the collaborative agreement with the NP or PA. In Collip v Ratts, a 2015 Indiana case in which the patient died from a drug interaction, the doctor's certified public accountant stated that the doctor was required to review at least 5% of the NP's charts every week to evaluate her prescriptive practices.

The doctor admitted that he never reviewed the NP's charts on a weekly basis. He did conduct some cursory reviews of some of the NP's notes, and in them he noted concerns for her prescribing practices and suggested she attend a narcotics-prescribing seminar, but he did not follow up to make sure she had done this.

Sometimes the NP or PA who made the mistake may actually be dropped from the lawsuit, leaving the supervising physician fully liable. In these cases, courts reason that a fully engaged supervisor could have prevented the error. In the 2006 case of Husak v Siegal, the Florida Supreme Court dropped the NP from the case, ruling that the NP had provided the supervising doctor all the information he needed in order to tell her what to do for the patient.

The court noted the physician had failed to look at the chart, even though he was required to do so under his supervisory agreement with the NP. The doctor "could have made the correct diagnosis or referral had he been attentive," the court said. Therefore, there was "no evidence of independent negligence" by the NP, even though she was the one who had made the incorrect diagnosis that harmed the patient.

When states require an autonomous NP to have a supervisory relationship with a doctor, the supervisor may be unavailable and may fail to designate a substitute. In Texas in January 2019, a 7-year-old girl died of pneumonia after being treated by an NP in an urgent care clinic. The NP had told the parents that the child could safely go home and only needed ibuprofen. The parents brought the girl back home, and she died 15 hours later. The Wattenbargers sued the NP, and the doctor's supervision was a topic in the trial.

The supervising physician for the NP was out of the country at the time. He said that he had found a substitute, but the substitute doctor testified she had no idea she was designated to be the substitute, according to Niran Al-Agba, MD, a family physician in Silverdale, Washington, who has written on the Texas case. Al-Agba told Medscape the case appears to have been settled confidentially.

Different Standards for Expert Witnesses

In many states, courts do not allow physicians to testify as expert witnesses in malpractice cases against NPs, arguing that nurses have a different set of standards than doctors have, Sullivan reported.

These states include Arkansas, Illinois, North Carolina, and New York, according to a report by SEAK Inc, an expert witness training program. The report said most other states allow physician experts in these cases, but they may still require that they have experience with the nursing standard of care.

Sullivan said some courts are whittling away at the ban on physician experts, and the ban may eventually disappear. He reported that in Oklahoma, which normally upholds the ban, a judge recently allowed a physician-expert to testify in a case involving the death of a 19-year-old woman, Alexus Ochoa, in an ED staffed by an NP. The judge reasoned that Ochoa's parents assumed the ED was staffed by physicians and would adhere to medical standards.

Supervision Pointers From a Physician

Physicians who supervise NPs or PAs say it is important to keep track of their skills and help them sharpen their expertise. Their scope of practice and physicians' supervisory responsibilities are included in the collaborative agreement.

Arthur Apolinario, MD, a family physician in Clinton, North Carolina, says his 10-physician practice, which employs six NPs and one PA, works under a collaborative agreement. "The agreement defines each person's scope of practice. They can't do certain procedures, such as surgery, and they need extra training before doing certain tasks alone, such as joint injection.

"You have to always figure that if there is a lawsuit against one of them, you as the supervising physician would be named," said Apolinario, who is also president of the North Carolina Medical Society. "We try to avert mistakes by meeting regularly with our NPs and PAs and making sure they keep up to date."

Collaborating With Autonomous NPs

Even when NPs operate independently in states that have abolished supervision, physicians may still have some liability if they give NPs advice, Al-Agba said.

At her Washington state practice, Al-Agba shares an office with an autonomous NP. "We share overhead and a front desk, but we have separate patients," Al-Agba said. "This arrangement works very well for both of us."

The NP sometimes asks her for advice. When this occurs, Al-Agba said she always makes sure to see the patient first. "If you don't actually see the patient, there could be a misunderstanding that could lead to an error," she said.

Conclusion

Even though NPs now have autonomy in most states, supervising physicians may still be liable for NP malpractice by virtue of being their employers, and physicians in the remaining states are liable for NPs through state law and for PAs in virtually all the states. To determine the supervising physician's fault, courts often study whether the physician has met the terms of the collaborative agreement.

Physicians can reduce collaborating NPs' and PAs' liability by properly training them, by verifying their scope of practice, by making themselves easily available for consultation, and by occasionally seeing their patients. If their NPs and PAs do commit malpractice, supervising physicians may be able to protect themselves from liability by adhering to all requirements of the collaborative agreement.

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