Midlevel Operations: Exploring New Exposures

with Allied Health Providers

Jayme T. VaccaroSedgwick

Learning Objectives

Identify professional liability risks unique to Midlevels and their Supervising Physicians

Discuss Risk Reduction Techniques

Review and take lessons from actual malpractice cases involving Midlevels

The World of Midlevels

Who are they?• PA’s, Nurse Practitioners, Midwives, Nurse

Anesthetist, etc. 6,723 PA’s, 8.1% of US 83,466

15,766 NP’s, 9.4% of US 167,857• (see statehealthfacts.org)

What do they do?• Walks, talks, acts…

• Lower Acuity Patients?

Where do they practice?• Everywhere!

Hot Topics for Midlevels

• Scope of Practice

• Supervisory Role of Physician

• Statutory Governance

• Tracking Midlevel Participation

• Credentialing

• Basic Professional Liability Considerations

Scope of Practice

What is Scope of Practice and How is it Determined? • Healthcare Providers

• State Law

• Hospital Credentialing

• Employment Contract

Reasonableness• Jury will use common sense

Lower Acuity• If you want to be a doctor, go to medical school

Effective Triage• Consulting or Referring to Physician

Case #1

Who did the Jury Believe?

Scope of Practice?

Case #1 - Scope of Practice

45 Year Old Male seen by PA & ED Physician for c/o Headache Hx of sinus cancer CT ordered Radiologist Read Film = No Pathologies Present=Body of Report

discusses other possible findings At issue:

- did ED Physician & PA also read CT - PA says yes, MD says doesn’t remember- if ED Physician read CT was he the ―last chance‖ for this patient?

Patient Discharged 4 Days Later returns in semi-conscious state Craniotomy, Stroke due to Untreated Brain Infection

Case #1 - Scope of Practice

ED Physician, PA, ED Group, Radiologist & Hospital Sued

PA dismissed on Statute of Limitations

Radiologist: Defense Verdict (causation)

ED Physician: $11M, Reduced to $6M

Jury embraced PA’s testimony that ED Physician read the CT and should have further acted notwithstanding the initial radiology findings and thereby could have further aided the patient

Case #1

Witness Abilities

• Nexus between Physician and PA

Does this lead to credibility?

• PA made better witness and was believed

• The PA defined the scope of practice of an ED physician for the jury

Supervising Role of Physician

Vicarious Liability• What if Physician Disagrees with care?

Communication• Open Door Policy• Physician too busy to review, oversee, interact with

midlevel• Patient Volume

Chart Sign Off• Timing of sign off • Did the Physician read the chart?• Is the Physician required to sign the chart?

Case #2

Is Anyone Supervising?

Case #2 Supervisory Role of Physician

40 Year Old Male with brain tumor Both Neurosurgeon and ENT perform surgery ENT hits cribiform ENT takes 4 hours to do 45 minute approach Neurosurgeon suspects complication No Anesthesiologist, Nurse Anesthetist Nurse Anesthetist does not recognize significance of

complication Neurosurgeon takes over surgery Brain Damage to patient Sues ENT, Neurosurgeon, Anesthesiologist, Nurse

Anesthetist, Anesthesiology Group and Hospital

Case #2 Supervisory Role of Physician

Nurse Anesthesis not licensed

Anesthesiologist supervising 8 Nurse Anthesesis at a time during surgeries

Anthesiolgist present at start of surgery and did not return for the next 8 hours

Nurse Anthesthesis missed warning signs on monitors that patient was in distress

Case settled by all defendants

Case #2 Supervisory Role of Physician

Anesthesiologist/Group Exposure

• Reality of Supervising

Surgical Team Exposure

Hospital Exposure

• Who Credentials?

• Reliance?

Statutory Requirements

Awareness

• PA’s

• Nurse Mid Wives

Compliance

Effect on Cases and License

What do the Statutes say?

Unique to each state & revised periodically - State PA laws –CAPA or www.aapa.org - NP & PA state licensing boards websites

Compliance- Delegation of Services Agreements- Protocols- Schedule II drugs- Chart documentation- Sign offs - EMTALA-Cross reference statutes

Impact on Cases - Negligence Per Se- elements:• There is a statute designed to protect a class of people (i.e. statutory scope of practice

requirement or supervision requirement)• Plaintiff was a member of the class to be protected (i.e. general public)• Plaintiff was injured due to a violation of the statute (fail to supervise, fail to stay within

scope of practice, etc.• Standard of Care Breached, Left with causation

Case #3

Did Anyone Review the Application?

Case Study #3

50 Year Old Male

PA takes Hx, Hired by the ED Group

Nausea, Headache, Dizziness, Confusion & Double Vision

―Pop‖ in Head

Hx of Hypertension, Diabetes, High Cholesterol and Family Hx of Stroke

MD examines and orders 2 CT’s

Dx Sinusitis

Antibiotics RX

Pt. Discharged Home

Case Study #3

Next Morning

Severe Headache, Slurred Speech

Patient returns to Hospital ED and transferred in the PM to Different Facility

2nd Hospital Dx Stroke

Patient now suffering major brain damage and paralysis

Case Study #3

Plaintiff’s alleged MD Missed Dx of Impending Stroke—MRI instead of CT?

2nd Visit Missed Dx of Stroke

Delay in Transfer

PA unlicensed, failed exams 4X—must have taken poor history

Case #3

Jury Verdict Award of $217M

50% of verdict on MD and PA

50% of verdict on MD Groups

Punitive Damages of $100M due to Unlicensed PA

ED Group BK’d

Hospital dismissed prior to trial

Case #3

Tracking this case as a PA case

Back to Basics: Licensing and Credentials

When juries get mad, they get mad…

Basic PL Considerations

Documentation

Witness Abilities

Communication/Relationships with other Healthcare Providers

Bedside Manner

Medical Training and Knowledge

Case #4

The Basics of Pregnancy

Basic PL Considerations: Case 4

35 year old female patient seen in ED for abdominal pain

Ultra Sound done, fetal demise (wet read) Patient told miscarried, follow-up with OB-GYN Patient seen 2 times by OB-GYN PA No repeat pregnancy test done Patient realizes she is still pregnant at 25 weeks Does not want Amnio Down Syndrome Baby Sues ED, Hospital, OB

Basis PL Considerations: Case 4

Final Read on Ultra Sound shows viable fetus

Final Read not relayed to ED but sent to OB’s office

Standard of Care of OB-PA, retest to confirm miscarriage and read Ultra Sound

Case is settled by ED, Hospital and OB

Case #4

Training and Knowledge

• The PA did not know to retest

• The PA did not think to review ED records

• The PA did not recognize on physical exam that the patient was still pregnant

• The PA did not confer with their supervising OB

• PA is held to the standard of an OB

Potpourri

Medicine, Statutes, Supervision and Contracts

The Basics and Then Some:Case # 5

Triage Nurse: 44 Year Old Male Fever Headache x four days Pain 10/10 Temp @ exam 98.8 BP 91/60 Pulse 90 Respiratory Rate 20 Skin Warm, Dry, Awake &

Oriented x4 No notation of skin rash

PA:

Fever, chills & body ache 4 to 5 days

Mild congestion & cough

No neck stiffness

Lips, teeth & gums dry

Tenderness L side of Neck

Dx viral syndrome

RX Vicodin

Seek further care if symptoms not better in 2 days or sooner

The Basics and More: Case #5 Allegations

Medical Issues:• Pulse & Blood pressure: dehydration• If dehydrated, labs? If labs, further testing which

would have led to proper dx?• Proper dx, leading to antibiotics?

Statutory Issues:• MD/PA Contracts—Not in Order, negligence per se• Rx Vicodin—Against Code, negligence per se• Code Allowed Physician off site but electronically

available

The Basics and Then Some:Case #5 Allegations

Contract Issues:

• Hospital, Group and PA Contracts at Issue

• Hospital Contract did not allow PA to be supervised by off site Physician

• Unilateral Indemnification Clause

• Financial Incentive

Group and Hospital Used PA because financially Beneficial

Putting It All Together

Medical Knowledge

Statutes

Supervisory Role

Check-List for the Risk Manager

Headcount

Scope of Practice

Supervision by Physicians

Statutes

Credentialing

Contractual Issues

Thank you