Article originally published in the ED LEGAL LETTER / December 2020, vol. 31, No. 12.
Only 18% of emergency medicine (EM) residency programs offer more than four hours a year of medical malpractice/risk management education, according to the authors of a recent study. More ED patients are visiting physician assistants (PAs) or advanced practice nurses (APRNs). Of 54,722 closed malpractice claims analyzed in a recent study, about 75% of claims naming advanced practice providers also named physicians. Other key findings:
- Malpractice claims naming PAs and APRNs were more likely to be paid on behalf of the hospital (38% and 32% respectively), compared to 8% of malpractice claims naming just physicians.
- Payments were higher when APRNs were defendants, for claims involving procedures, and for claims involving when patients died.
“ED advanced practice providers used to be sued infrequently, mainly because their practice pattern was more restricted to simpler patients,” says Mark Spiro, MD, chief medical officer of the Walnut Creek, CA-based The Mutual Risk Retention Group.
Typically, advanced practice providers saw children with earaches and patients with mild trauma such as lacerations or simple fractures. Today, advanced practice providers are caring for medically complex patients in the ED, those with chest pain, sepsis, and stroke. “This is because of the physician shortage and because there are more complex patients and less minor ones. It is also partly that the advanced practice providers want a more interesting and challenging practice,” Spiro offers.
In turn, advanced practice providers are named in lawsuits more frequently. “They are taking on more complicated patients, and we are seeing them get sued much more often,” Spiro reports.
Supervising EPs typically are named, too, even if they never saw the patient. The question for the co-defendants then becomes: Why did the advanced practice provider not consult with the supervising EP? “It’s a chance for another person to look at the patient and, hopefully, to catch what got missed,” Spiro notes.
Possibly, the advanced practice provider saw a patient with a dislocated knee and failed to order an angiogram of the popliteal artery. In that kind of case, the plaintiff attorney would focus on why the supervising EP never intervened and missed the chance to avoid a bad outcome.
In one case, an inexperienced plaintiff attorney named only the supervising EP without even realizing that an advanced practice provider was the one who saw the patient.
Eventually, the lawyer realized the supervising EP had not cared for the patient. By that time, the statute of limitations had expired. “The supervising EP was held liable for the care that the advanced practice provider gave,” Spiro says. Usually, both providers are named, at least initially. “Our experience has been that eventually, the supervising physician is usually dropped,” Spiro observes.
Ultimately, it is determined the supervising EP did not provide the care at issue. There may be no reason for the plaintiff attorney to keep the supervising EP in the case. “If it’s a $200,000 case, and each provider has a $1 million policy limit, there’s no need for the plaintiff attorney to go after the supervising physician,” Spiro explains.
Some ED policies list specific chief complaints that always require the supervising EP to be consulted. These can be problematic, legally speaking, according to Spiro. He prefers EDs offer general guidance on which categories of patients need the supervising EP involved, such as “any patient older than age 80” or “any patient younger than three months.”
For one thing, that kind of guidance is easier to remember than a long list of complaints. Also, if the patient’s complaint is on the list, and the advanced practice provider did not involve the supervising EP, there is additional liability exposure for failing to follow the policy. Ideally, the communication between the advanced practice provider and the supervising EP is “very open and inviting,” Spiro says.
If the perception is that a grumpy, short-tempered supervising EP just does not want to be bothered, it puts everyone at risk. “The supervising EP should encourage them to come forward, as opposed to the attitude, ‘Can’t you handle this?’” Spiro says. That attitude might be expressed verbally, or the supervising EP might just come off as unapproachable.
Either way, the advanced practice provider is reluctant to “bother” the supervising EP, even if he or she is unsure about a high-risk patient. “Ultimately, it’s not about malpractice; it’s about what’s best for the patient,” Spiro says. “What’s best for the patient is for the supervising EP to get involved.”
Sometimes, the problem is patients do not understand why they are seeing a PA or NP. In other cases, the patient just assumes they are seeing an EP, or the NP or PA did introduce themselves, but the patient did not understand. “It could be that the patient just hears the word ‘physician,’ and assumed the PA was a doc,” Spiro suggests.
Occasionally, patients complain to attorneys that they were never told they were seen by an advanced care provider as opposed to an EP. “Older patients tend to assume that advanced care providers are physicians and refer to them as ‘doctor,’” says Amy Evans, JD, executive vice president of business development and liability claims division at Intercare Insurance Services in Bellevue, WA.
It is important for advanced care providers to correct patients who refer to them as doctors to eliminate any confusion on this point, Evans says. Ideally, ED patients are told they are talking to an advanced care provider and hear a brief explanation of the provider’s role.
In most malpractice claims naming advanced practice providers in the ED, the care provided was good, Evans notes. Those cases are fairly straightforward to defend because the supervising EP’s testimony supports the care at issue. The claims that are tough to defend feature this fact pattern:
- The advanced practice provider is faced with a subtle or unique presentation;
- The advanced practice provider fails to consult with an EP before discharging the patient.
Evans has seen malpractice claims involving advanced practice providers with these allegations:
- Failure to recognize early signs and indications of sepsis;
- Failure to diagnose concussions;
- Missing subtle indications of myocarditis.
These claims are problematic if the supervising EP cannot support the care provided. “They usually testify that if they had been contacted, they would have recommended a different course of treatment,” Evans says. That pits the supervising EP against the advanced practice provider, making a unified defense impossible.
Also problematic are cases in which the advanced practice provider failed to involve specialty consults when, in hindsight, they should have. If the advanced practice providers are employees of the hospital, then the hospital can be held vicariously liable. This is the case even if they are not employees, if “apparent agency” laws are strong in a particular venue. “Hospitals also may face exposure if they are staffed primarily with advanced practice providers without sufficient physician staffing to adequately support and guide the advanced practice providers,” Evans notes.
This kind of arrangement might be cost-effective for financially struggling hospitals. Yet hospitals need to keep in mind how it would look to a jury. “While advanced practice providers are inherently qualified, optics still matter to juries,” Evans adds. “There still needs to be a visible physician presence.”