Summary

Executive Summary

Nonphysician practitioners' scope of practice is largely dictated by state laws and regulations and is also impacted by other factors such as employment agreements, practice setting, and billing requirements of Medicare and other payers. Solid working knowledge of the statutes and regulations for each state in which the clinician practices is the essential first step in a successful working relationship between physicians and nonphysician practitioners. Maintaining this knowledge can be an ongoing challenge for risk managers, physicians, and nonphysician practitioners alike, given the dynamic nature of such laws and regulations. In addition to ensuring current working knowledge of applicable laws and regulations, several other strategies are important to promote communication, ensure patient safety, and decrease potential risk and liability.

Nurse practitioners and physician assistants are vital parts of the primary care workforce. Over 60% of nurse practitioners practice in primary care, and nurse practitioners constitute about 20% of the total primary care workforce (Goodell et al.; Poghosyan et al.). Reliance on nonphysician practitioners is expected to grow as the Patient Protection and Affordable Care Act expands access to care, the shortage of primary care physicians continues to grow, and baby boomers enter the aging population (Jones and Moses). The Institute of Medicine (IOM) and national professional organizations are calling for expansion of the nurse practitioner workforce in primary care. IOM notes that state scope of practice laws, and not education and training, dictate the services that nurse practitioners are allowed to perform and recommends that nurse practitioners practice to the full extent of their preparations. To help nurse practitioners fill the growing primary care shortage, IOM recommends that nurse practitioners achieve higher education levels and calls for doubling the number of nurses with doctorates by 2020. (Cassidy; Chism; Poghosyan et al.)

Who Should Read This

​Human resources, Legal counsel, Medical staff coordinator, Risk manager

Full Text

Nonphysician practitioners' scope of practice is largely dictated by state laws and regulations and is also impacted by other factors such as employment agreements, practice setting, and billing requirements of Medicare and other payers. Solid working knowledge of the statutes and regulations for each state in which the clinician practices is the essential first step in a successful working relationship between physicians and nonphysician practitioners. Maintaining this knowledge can be an ongoing challenge for risk managers, physicians, and nonphysician practitioners alike, given the dynamic nature of such laws and regulations. In addition to ensuring current working knowledge of applicable laws and regulations, several other strategies are important to promote communication, ensure patient safety, and decrease potential risk and liability.

Although the term "nonphysician practitioner" has been used to refer to a variety of healthcare professionals, including but not limited to certified nurse-midwives, certified registered nurse anesthetists, and clinical nurse specialists, for the purposes of this Guidance Article, it is used to refer exclusively to nurse practitioners and physician assistants.

Nurse practitioners and physician assistants are vital parts of the primary care workforce. Over 60% of nurse practitioners practice in primary care, and nurse practitioners constitute about 20% of the total primary care workforce (Goodell et al.; Poghosyan et al.). Reliance on nonphysician practitioners is expected to grow as the Patient Protection and Affordable Care Act expands access to care, the shortage of primary care physicians continues to grow, and baby boomers enter the aging population (Jones and Moses). The Institute of Medicine (IOM) and national professional organizations are calling for expansion of the nurse practitioner workforce in primary care. IOM notes that state scope of practice laws, and not education and training, dictate the services that nurse practitioners are allowed to perform and recommends that nurse practitioners practice to the full extent of their preparations. To help nurse practitioners fill the growing primary care shortage, IOM recommends that nurse practitioners achieve higher education levels and calls for doubling the number of nurses with doctorates by 2020. (Cassidy; Chism; Poghosyan et al.)

State Regulation

Although regulation of physicians' medical practice (i.e., full authority to diagnose and treat all conditions) is fairly consistent from state to state, regulation of physician assistants, and especially nurse practitioners, varies significantly. For example, although some states require physician supervision of nurse practitioners and others permit nurse practitioners to practice without any physician supervision, many states fall in between. This may result in a requirement for collaboration or a requirement for supervision regarding certain aspects of prescriptive authority, for example. (Cassidy; Goodell et al.)

Scope of practice and professional roles of nonphysician practitioners are determined by state laws and state regulatory boards and are addressed in employer policies, procedures, and protocols. Compliance with state laws and regulations can be particularly challenging due to ongoing legislative initiatives.

The roles and responsibilities of nonphysician practitioners are evolving due to unmet physician demand, particularly in primary care. Proposed changes for advanced practice nurses and physician assistants were among the most popular scope of practice–related legislative measures in recent years (NCSL). More than 40 states have made changes to physician assistant practice requirements, including removal of an Indiana requirement that the supervising physician be in a contiguous county to the physician assistant and the removal of a Kentucky requirement for on-site supervision of physician assistants for the first 18 months of their practice. (Westgate) Additionally, following six years of legislative debate, Nevada recently allowed nurse practitioners to practice independently. The new law permits nurse practitioners with at least two years of experience to set up practice, open autonomous health clinics, and provide the same range of primary care services as physicians do. (Vestal)

The administrative requirements of interstate practice are another consideration, as nonphysician practitioners gain expanding responsibility for the care of patients in more than one state. Nonphysician practitioners working for large providers that have multiple facilities must often cross state borders to carry out patient care, which makes it necessary for the clinician to have multiple state licenses, even though he or she may work for only one provider. (Benesch and Hyman)

This Guidance Article provides an overview of state laws that dictate nonphysician practitioner scope of practice; Web Resources to assist risk managers, physicians, and nonphysician practitioners in their efforts to stay abreast of regulatory requirements; and practical strategies to promote communication and patient safety among physicians and nonphysician providers while decreasing risk and potential for liability.

Overview of Professions

Nurse Practitioners

Web Resources

AANP Scope of Practice Map

Nurse practitioners are licensed, independent clinicians who practice autonomously and in collaboration with other healthcare professionals in ambulatory, acute, and long-term care as primary and/or specialty care providers (AANP). They earn a minimum of a graduate nursing degree in preparation to provide direct primary care or general medical care to patients in a broad range of health services and practice with a high degree of professional autonomy. (Benesch and Hyman) Nurse practitioners are authorized to prescribe drugs in all 50 states, but with variations such as the ability to prescribe controlled substances and requirements for physician cosignature (ACP).

Nurse practitioners hold independent licenses to practice nursing; however, individual state practice acts govern specific aspects of practice, with regulations that vary considerably from state to state (ACP). For example, some states require no formal practice relationship between nurse practitioners and physicians, allowing nurse practitioners to provide care without any physician involvement. However, other states require a collaborative or supervisory relationship. (ACP; Poghosyan et al.) It is therefore critical for both physicians and nurse practitioners to have a solid working knowledge of the practice act(s) for the state(s) in which they practice. Refer to "Web Resources" for the American Association of Nurse Practitioners' scope of practice resources, including a map of nurse practitioner scope of practice (classified as "full," "reduced," or "restricted") and links to individual state laws, regulatory bodies, and professional organizations.

Common aspects of nurse practitioner practice typically addressed in state practice acts include the following (Barton Associates):

  • Autonomous practice
  • Eligibility to act as a primary care provider
  • Prescriptive authority
  • Ability to order physical therapy
  • Authority to sign death certificates, handicap parking permits, and workers' compensation claims
Web Resources

Nurse Practitioner Scope of Practice Laws

See "Web Resources" for an interactive guide to scope of practice laws for nurse practitioners with specific information on the aspects mentioned above. Note: The guide is published by a for-profit staffing agency. ECRI Institute does not specifically endorse this or any such service; the link is provided solely as a source of useful information.

Physician Assistants

In contrast to the varying degrees of autonomy under which nurse practitioners practice, physician assistants provide medical services exclusively under the delegation of physicians; they have no authority to function independently or to provide services except as assigned by and under the auspices of a supervising physician (Benesch and Hyman). Four parameters determine and guide the scope of practice for individual physician assistants: state law and regulation, education and experience, facility policy, and the needs of the patients at the practice (AAPA "Issue Brief"). The impact of the supervising physician's scope of practice on the role of physician assistant practice is addressed by individual state laws; generally, however, supervising physicians may only delegate to the physician assistant tasks and procedures that are within their own scope of practice (Fla. Admin. Code R. 64B8-30.012; 49 Pa. Code § 18.151[b]). For example, the physician assistant's scope of practice is limited to the medical specialty of the supervising physician (e.g., cardiology, dermatology) (California Department of Consumer Affairs).

Physician assistants first earn a bachelor's degree and then complete a two- to three-year physician assistant program that typically culminates in a master's degree (AAPA "How to Become"). They must pass a national certification exam in order to be eligible for state licensure and must pass a recertification exam every six years. No internship or residency is required in physician assistant training, and practice specialty is determined by that of the supervising physician. Physician assistants have delegated prescriptive authority in every state and the District of Columbia (ACP; HPIX).

Supervision is a critical aspect of the relationship between physician assistants and the physicians with whom they work. As with most aspects of nonphysician practitioner roles and responsibilities, individual state laws set exact requirements. However, the general spirit of the supervisory arrangement as described in the Medicare Benefit Policy Manual places final responsibility with the physician: "The PA's [physician assistant's] physician supervisor . . . is primarily responsible for the overall direction and management of the PA's professional activities and for assuring that the services provided are medically appropriate for the patient." (CMS)

Each state sets its own supervision requirements, and although supervising physicians are not necessarily required to be physically present when services are rendered, the physician and the physician assistant must be in contact to ensure patient safety and to enable the physician assistant to consult with the physician whenever needed. As stated by the American College of Physicians, "It is important to remember that the physician is ultimately responsible for the care of the patients" (ACP). One example of appropriate supervision, as defined by Pennsylvania state law, includes the following (49 Pa. Code § 18.122):

  • "Active and continuing overview of the physician assistant's activities to determine that the physician's directions are being implemented."
  • "Immediate availability of the supervising physician to the physician assistant for necessary consultations."
  • "Personal and regular review within 10 days by the supervising physician of the patient records upon which entries are made by the physician assistant."

Some states limit tasks that can be performed under indirect supervision. For example, in Florida, among other limitations, physician assistants may not interpret laboratory tests, x-rays, or electrocardiograms without the supervising physician's interpretation and final review (Fla. Admin. Code R. 64B8-30.012).

Still other states have moved away from defining scope by regulation, emphasizing the role of the supervising physician instead. For example, Wyoming state regulations do not define specific competency or skill but rather assign responsibility to the physician to evaluate whether the physician assistant performs "with similar skill and competency" in their assigned duties as the physician. (State of Wyoming Board of Medicine)

Web Resources

AAPA State Practice Acts

Oregon Practice Agreement

Ohio Practice Agreement

Employing a PA

Given the individual nature, wide variety, and continual evolution of state practice acts, physician assistants and their supervising physicians must maintain a solid working knowledge of the regulatory landscape for each state in which they practice. See "Web Resources" for a link to a summary of state practice acts maintained by the American Academy of Physician Assistants.

Required by law, a written "practice agreement" between a physician assistant and a supervising physician describes how the physician assistant will practice. Practice agreements set forth clinical parameters such as core competencies and delegated tasks, as well as administrative aspects such as the plan for supervision. Individual practice agreement forms can generally be found in online searches for the state name and "physician assistant practice agreement." See "Web Resources" for selected examples of physician assistant practice agreements.

Supervision ratios are also dictated by state law and vary in the number of physician assistants that a physician is permitted to supervise. For example, Pennsylvania limits each physician to two, while California allows up to four physician assistants to be supervised by a single physician. (49 Pa. Code § 18.152[b][2]; California Department of Consumer Affairs)

See "Web Resources" for the American Academy of Physician Assistants' web page "Employing a PA," which contains a variety of resources, including a guide for new physician assistant employers, a credentialing service, and a competency assessment.

Professional Liability Issues

Tort Theories of Liability

Although utilizing nonphysician providers can increase access to care, productivity, and revenue, it also adds an additional layer of professional responsibility and potential liability for the physician (Moses and Feld). In cases of alleged negligence, nonphysician practitioners may be held accountable for their own actions, and physicians and medical practices may be held accountable as well under various theories of direct and derivative tort liability (HPIX).

Five common errors have been identified in professional liability claims against nonphysician practitioners (HPIX; Moses and Feld; Page):

  1. Inadequate examination, which is typically associated with a rushed exam and/or patient interview.
  2. Failure to diagnose, in which the nonphysician provider may be uncertain or misinterpret information about the diagnosis. Root-cause analysis may indicate that failure to diagnose or delayed diagnosis is directly attributed to inadequate supervision (see Diagnostic Error: Failure to Order Arterial Ultrasound; $5M Awarded for Amputation for an example of one such case).
  3. Failure to make timely referral to a physician, in which the nonphysician provider may attempt to treat complex conditions beyond his or her training or skill.
  4. Negligent misrepresentation, in which a patient is "credibly unaware" that the provider is not, in fact, a physician.
  5. Lack of adequate supervision, in which direct supervisors fail to effectively watch over the work of nonphysician practitioners, which is more likely to occur in larger practices with multiple physicians.

In addition to liability for negligent supervision and liability for their own negligent action or inaction in caring for the patient, physicians working with nonphysician practitioners can also be found vicariously liable (i.e., the physician is found liable for the acts of the nonphysician practitioner) under a theory of agency, such as respondeat superior, which comes into play when the physician employs the nonphysician practitioner. Physician-employers may also be held directly liable for negligent hiring practices (e.g., the physician hires a nonphysician practitioner who they know, or should have known, lacked the requisite education, training, and/or skill). (HPIX)

Claims Studies

In a study of professional liability claims paid on behalf of nurse practitioners for the 10-year period concluding in 2008, it was found that average indemnity and legal expense claims increased through the 10-year period; that the medical office experienced the highest number of claims, by setting; and that, although rare, scope of practice–related allegations were associated with the highest average paid indemnities. (NSO "Nurse Practitioners Are") A subsequent study of the five-year period ending in 2011 found that the most frequent allegations against nurse practitioners involved failure to diagnose, failure to provide proper care, and medication prescribing errors (NSO "Nurse Practitioner 2012").

While the overall frequency for malpractice payments on behalf of physician assistants has been found to be "low," review indicates themes in claims against this group: about half of such claims are related to diagnosis issues, and most cases also involve the supervising physician. Additionally, one study found that although the frequency of payments on behalf of physician assistants was lower than that for physicians, the average payment amount was higher. (Jackson et al.; Page)

Lawsuits

Lawsuits against nonphysician providers, while relatively rare, virtually always include the supervising physician (Page). They most typically include allegations of inadequate supervision and/or practice beyond the scope of training, which can manifest as failure to diagnose and failure to follow up (Crane). Different levels of education and training, as compared with that of physicians, do not change the risk: from a malpractice standpoint, any breach of the standard of care creates potential for a lawsuit (Jones and Moses). For an example of how the roles of physicians and physician assistants can manifest in a lawsuit, see Liability: Physician Assistants Not Held to Same Standards as Physicians.

Settlements and jury awards against nonphysician providers accused of malpractice can be significant. For example, a Pennsylvania jury awarded a $3 million verdict to a patient who developed a brain abscess, requiring surgery and resulting in permanent disability, after a physician assistant failed to diagnose her sinus infection. In addition to the physician assistant's negligent failure to diagnose, it was found that the supervising physicians failed to adhere to their written agreement for working with physician assistants. (Reed)

Such lawsuits are particularly troubling in light of the concern that as a group, nonphysician practitioners tend to be underinsured for professional liability coverage (Jones and Moses). This is an evolving issue that has been addressed by some state legislatures. However, requirements, if any, vary by state and profession; current working knowledge of the applicable state law is essential. For example, in 2014, Pennsylvania enacted a requirement that physician assistants carry $1 million in professional liability coverage per occurrence (49 Pa. Code § 18.146). In Florida, nurse practitioners are required to carry $300,000 in aggregate coverage, although there is also an exception process that could apply depending upon the employment arrangement (Florida Board of Nursing).

Strategies for Oversight and Communication

Ensure Familiarity with State Law

A solid working knowledge of the applicable state law and regulations will provide the practical basis for clinical and administrative aspects of the relationship, such as criteria for licensure, written agreements, responsibilities of supervising and collaborating physicians, liability coverage requirements, role of nonphysician practitioners, and prohibitions upon both nonphysician practitioners and physicians.

Hiring and Contracting

Proactive discussion regarding the prospective nonphysician practitioner's intended role within the practice will ensure that all expectations (e.g., responsibilities, scope of practice) align appropriately with their training, skill, knowledge, and comfort level (ACP). This discussion should not be limited to the nonphysician practitioner and supervising physician (if applicable) but rather should include office staff and support personnel.

Credentialing and Privileging

The importance of careful credentialing of all prospective employees cannot be overstated, considering, for example, Khan v. Medical Board of California, in which a physician's medical license was revoked for aiding the unlicensed practice of medicine by employing an individual falsely claiming to be a physician assistant. In this case, the court affirmed physicians' responsibility in credentialing, refuting the defendant physician's claim that he had been misled by stating that if a "practicing physician" could not properly verify licensure, the "average person seeking medical care" would have no hope of doing so. (Khan v. Med. Board of California)

Leadership and Training

Physicians must take an active leadership role, encouraging communication and modeling the behavior they wish to see in terms of patient care, documentation, and professional interactions (HPIX). Physicians should be mindful that nonphysician providers may be hesitant to "disturb" their supervising physician. It is important that both parties recognize the collaborative nature of the relationship and work to eliminate any underlying apprehension. (Page)

Physician practice leaders recommend that communication between physicians and nonphysician practitioners needs to become more "transparent," emphasizing the importance of physicians investing time with their staff, training them on their individual approach (Marbury).

Patient Notification and Education

Patients must always know whether they are being seen by a physician or nonphysician provider. Surveys have found that many patients erroneously think that the nonphysician practitioners treating them are physicians, indicating a need for concerted efforts to educate patients about collaborative care models (Marbury; Page). Additionally, state law typically requires appropriate identification and proactive patient notification.

Protocols

Web Resources

Georgia Nurse Protocol Agreement

Physician Assistant Protocol and Delegation of Services Agreement

Nonphysician Practitioners: Relevant Society Position Statements

Standards should be clarified and documented with clear written protocols, including with regard to lines and methods of communication, scope and limitations of practice, and locations of practice. Hiring contracts should also include the signatures of the physician and nonphysician provider indicating their understanding and agreement of the above. (Page) Many states require the development of these protocols, and some require approval by the state medical board. (AMDA) See "Web Resources" for examples of nurse practitioner and physician assistant protocols.

Supervision

The efficiencies and productivity that can result from collaborative care arrangements with nonphysician practitioners must be balanced with the organizational burdens of supervision. Although an individualized plan takes the training and experience of the nonphysician practitioner into account, supervision should never consist merely of passive oversight but rather always require the active and continuous effort of the supervising physician to direct and review the nonphysician practitioner's work, records, and practice to ensure that directions are understood and that appropriate treatment is provided. (AMDA) See Negligence: Improper Supervision of Blood Thinner Leads to Death for a case study describing a patient death that was blamed on inadequate supervision of a nurse practitioner. See "Web Resources" for additional strategies for supervision of nonphysician practitioners:

Action Recommendations

  • Ensure familiarity with state law. Refer to "Web Resources" in the discussion Overview of Professions for links to databases of state laws for nonphysician practitioners.
  • Educate the entire practice team, including office staff and support personnel, about the nonphysician practitioner's roles and responsibilities.
  • Ensure that employment contracts, which form the basis for the nonphysician practitioner's professional duties, reflect the parameters of any applicable written agreement.
  • Ensure that contracts reflect compliance with state laws for scope of practice and supervision.
  • Ensure that all parties have appropriate professional liability insurance, within the requirements of any applicable state laws.
  • Utilize the appropriate state agency and any applicable specialty societies for the specific profession to verify both licensure and specialty certifications.
  • Conduct thorough background checks and reference reviews.
  • Approach periodic recredentialing with equal diligence.
  • Strive to create an environment in which nonphysician providers are encouraged to consult with supervising physicians.
  • Invest time in comprehensive, hands-on training of nonphysician providers, including verification of competencies.
  • Encourage interaction and dialogue, both proactive and problem-based.
  • Develop a strategy for patient communications (e.g., signage, practice websites) to address how nonphysician practitioners fit into the practice and what services they provide.
  • Require nonphysician practitioners to introduce themselves as such and be proactive in the correction of any misunderstandings.
  • Require support staff to be equally clear in identifying nonphysician practitioners.
  • Utilize practical supports such as clear identification badges with appropriate credentials and different "uniforms" (e.g., white coat) for physicians and nonphysicians.
  • Ensure continuous availability of direct communication between the nonphysician practitioner and the supervising physician, whether in person or by electronic communications.
  • Reserve adequate time in the physician's schedule for chart review and both planned and ad hoc meetings with the nonphysician practitioner.
  • Prepare for potential unusual circumstances with an emergency plan and designation of an alternate physician supervisor.
  • Document findings and recommendations of supervisory sessions.

Glossary

References

Bibliography

References

​49 Pa. Code § 18.122. Also available at http://www.pacode.com/secure/data/049/chapter18/subchapdtoc.html

49 Pa. Code § 18.146.

49 Pa. Code § 18.151(b).

American Academy of Physician Assistants (AAPA):

How to become a PA [online]. [cited 2014 Aug 26]. http://www.aapa.org/landingquestion.aspx?id=288

Issue brief: PA scope of practice [online]. 2014 Mar [cited 2014 Jul 11]. http://www.aapa.org/WorkArea/DownloadAsset.aspx?id=583

American Association of Nurse Practitioners (AANP). Scope of practice for nurse practitioners [online]. 2013 [cited 2014 Jul 11]. http://www.aanp.org/images/documents/publications/scopeofpractice.pdf

American College of Physicians (ACP). Hiring a physician assistant or nurse practitioner [online]. 2010 Feb [cited 2014 Jul 9]. http://www.acponline.org/running_practice/practice_management/human_resources/panp2.pdf

American Medical Directors Association (AMDA). Nonphysician practitioners—relevant society position statements [online]. [cited 2014 Jul 9]. https://amda.com/advocacy/Society.cfm?printPage=1&

Barton Associates. Interactive nurse practitioner scope of practice guide [online]. 2014 Mar 20 [cited 2014 Jul 11]. http://www.bartonassociates.com/nurse-practitioners/nurse-practitioner-scope-of-practice-laws

Benesch K, Hyman DJ. Nonphysician practitioners: more care, less cost, different law? [online]. [cited 2014 Jul 7]. http://www.healthlawyers.org/Events/Programs/Materials/Documents/PHY09/benesch_hyman.pdf

California Department of Consumer Affairs Physician Assistant Board. Frequently asked questions about supervising physician assistants [online]. [cited 2014 Jul 11]. http://www.pac.ca.gov/supervising_physicians/faqs.shtml

Cassidy A. Nurse practitioners and primary care (updated) [online]. 2013 May 15 [cited 2014 Jul 9]. http://www.healthaffairs.org/healthpolicybriefs/brief.php?brief_id=92

Centers for Medicare and Medicaid Services (CMS). Covered medical and other health services. Chapter 15. In: Medicare Benefit Policy Manual [online]. 2014 Aug 29 [cited 2014 Aug 30]. http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/bp102c15.pdf

Chism L. Transforming healthcare in the 21st century [online]. 2013 Feb 8 [cited 2014 Jul 17]. http://nurse-practitioners-and-physician-assistants.advanceweb.com/Column/DNP-Perspectives/Transforming-Healthcare-in-the-21st-Century.aspx

Crane M. Malpractice risks with NPs and PAs in your practice [online]. 2013 Jan 3 [cited 2014 Jul 21]. http://www.medscape.com/viewarticle/775746

Fla. Admin. Code Ann. r. 64B8-30.012 (2010). Also available at https://www.flrules.org/gateway/ruleno.asp?id=64B8-30.012

Florida Board of Nursing. Advanced registered nurse practitioner (ARNP) [online]. [cited 2014 Jul 23]. http://floridasnursing.gov/nursing-faqs/advanced-registered-nurse-practitioner-arnp

Goodell S, Dower C, O'Neil E. Primary care workforce in the United States [online]. 2011 Jul [cited 2014 Jul 21]. http://www.rwjf.org/content/dam/farm/reports/issue_briefs/2011/rwjf70613

Healthcare Providers Insurance Exchange (HPIX). Physician liability for non-physician clinicians [online]. 2008 Oct [cited 2014 Jul 17]. http://www.hpix-ins.com/pdf/Expired-Modules/Physician-Liability-for-Nonphysician-Clinicians.pdf

Jackson JZ, Hyncik WG, Hahn CK. Physician assistants: liability and regulatory issues [online]. 2012 Fall [cited 2014 Jul 21]. http://www.mdmc-law.com/tasks/sites/mdmc/assets/Image/MDAdvisor_FALL_12_ONLINE_FINALrev.pdf

Jones D, Moses R. Legal risks of non-physician clinicians, practice guidelines, & quality under PPACA. Presentation to: Health Care Compliance Association; 2014 Jun 6; Minneapolis.

Khan v. Med. Board of California, 16 Cal. Rptr 2d 385, 392 (Cal. Ct. App. 1993).

Marbury D. There are no easy solutions to the scope of practice debate [online]. Med Econ 2013 Sep 10 [cited 2014 Jul 11]. http://medicaleconomics.modernmedicine.com/medical-economics/news/scope-practice-debate?page=full

Moses RE, Feld AD. Physician liability for medical errors of nonphysician clinicians: nurse practitioners and physician assistants. Am J Gatroenterol 2007 Jan;102(1):6-9. PubMed: http://www.ncbi.nlm.nih.gov/pubmed/17266683

National Conference of State Legislatures (NCSL). Scope of practice overview [online]. 2013 Jul 1 [cited 2014 Jul 7]. http://www.ncsl.org/research/health/scope-of-practice-overview.aspx

Nurses Service Organization (NSO):

Nurse practitioners are at the forefront of a paradigm shift occurring in today's healthcare industry [online]. 2010 Feb 2 [cited 2014 Jul 17]. http://www.nso.com/pdfs/db/Nurse_Practitioner_Claim_Study_02-12-10.pdf?fileName=Nurse_Practitioner_Claim_Study_02-12-10.pdf&folder=pdfs/db&isLiveStr=Y

Nurse practitioner 2012 liability update [online]. 2012 Oct [cited 2014 Aug 26]. https://www.nso.com/pdfs/db/NP_Claims_Study_2012.pdf?fileName=NP_Claims_Study_2012.pdf&folder=pdfs/db&isLiveStr=Y

Page AE. Liability issues with physician extenders [online]. 2010 Mar [cited 2014 Jul 21]. http://www.aaos.org/news/aaosnow/mar10/managing6.asp

Poghosyan L, Lucero R, Rauch L, et al. Nurse practitioner workforce: a substantial supply of primary care providers. Nurs Econ 2012 Sep-Oct;30(5):268-74. PubMed: http://www.ncbi.nlm.nih.gov/pubmed/23198609

State of Wyoming Board of Medicine. Board of medicine rules and regulations [online]. 2007 [cited 2014 Jul 11]. http://wyomedboard.state.wy.us/PDF/Rules/BOM New Rules.pdf

Vestal C. Nurse practitioners slowly gain autonomy [online]. 2013 Jul 19 [cited 2014 Jul 11]. http://www.kaiserhealthnews.org/stories/2013/july/19/stateline-nurse-practitioners-scope-of-practice.aspx

Ward PR. Jury awards $3 million in malpractice suit [online]. Pittsburgh Post Gaz 2007 Nov 24 [cited 2014 Jul 21]. http://www.post-gazette.com/news/health/2007/11/24/Jury-awards-3-million-in-malpractice-suit/stories/200711240081

Westgate A. Several states rethink PA scope of practice, AAPA weighs in [online]. 2013 May 29 [cited 2014 Jul 11]. http://www.physicianspractice.com/blog/several-states-rethink-pa-scope-of-practice-aapa-weighs-in

Supplementary Materials

Resource List

​American Association of Nurse Practitioners
(512) 442-4262
http://www.aanp.org

American Medical Directors Association
(410) 740-9743
http://www.amda.com

Arkansas State Medical Board
(501) 296-1802
https://www.armedicalboard.org

Barton Associates
(877) 341-9606
http://www.bartonassociates.com

Georgia Composite Medical Board
(404) 656-3913
http://medicalboard.georgia.gov/

Additional materials

Diagnostic Error: Failure to Order Arterial Ultrasound; $5M Awarded for Amputation

A Georgia court of appeals upheld a jury's determination that a physician assistant, an emergency physician, and their employer were liable to a patient for ordinary and gross negligence for failure to provide proper care in a hospital emergency department (ED), awarding $5 million in damages to compensate the patient for a double amputation. The plaintiff alleged that the physician assistant, who examined and assessed the patient in the ED, failed to order an arterial ultrasound or any other diagnostic testing to determine whether the diminished pulse he detected in the plaintiff's feet was caused by a partial arterial blockage. The physician assistant ordered a venous ultrasound to rule out the possibility of deep-vein thrombosis and treated the patient with morphine for pain and antibiotics for cellulitis based on an elevated white blood cell count and signs of redness and tenderness in her legs.

The plaintiff, who had a history of diabetes and hypertension, arrived in the ED by ambulance after experiencing coldness in her feet that worsened over a period of days, rendering her unable to walk. A triage assessment classified her as nonurgent, and she was assigned to an area of the ED for patients who were expected to be "in and out in 90 minutes or less."

The physician assistant discussed his assessment and proposed plan of care with his supervising physician, who agreed with both without having any direct personal contact with the patient. On the morning after her discharge from the ED, an ambulance responded to an emergency call from the patient's residence, where emergency technicians found her unresponsive and without blood pressure or pulse and performed successful resuscitation. The patient was transported to the hospital, where an arteriogram was performed, resulting in a diagnosis of complete blockage of the arteries behind both knees. Extensive damage to her limbs required both legs to be amputated below the knee.

The defendants sought the legal protection of Georgia's emergency care act, which provides immunity from liability to a healthcare provider for "gross negligence" if the provider mistakenly concluded that a patient had become "stabilized" and was capable of receiving medical treatment as a "nonemergency patient." The trial court permitted the jury to determine whether the patient's claims arose out of the provision of "emergency medical care" as defined by the act. The jury found that the patient was capable of receiving nonemergency care in the ED because her condition had in fact been stabilized by the physician's assistant.

On appeal, the hospital argued that the trial judge erred in permitting the jury to determine whether the patient received "emergency care" as provided in the statute. The appeals court found no legal error, finding that the jury followed the appropriate legal standard in assessing negligence and liability.

Source: Howland v. Wadsworth, 749 S.E.2d 762 (Ga. Ct. App. Oct. 9, 2013).

Liability: Physician Assistants Not Held to Same Standards as Physicians

Ruling in a medical negligence action alleging that a physician assistant failed to correctly diagnose a patient's cardiomyopathy, the Supreme Court of Tennessee held that the professional standard of care applicable to physician assistants is distinct from that applicable to physicians. The court also held that a physician delegating certain responsibilities to a physician assistant remains responsible for the assistant carrying out those responsibilities in an appropriate manner. The patient did not sue the physician assistant directly but instead targeted the clinic that employed the physician assistant and the physician who supervised the physician assistant. Because the patient introduced no expert proof at trial as to any violation of the applicable standard of care with regard to the physician assistant, the trial court was correct in granting summary judgment to the defendants and dismissing the case, the high court determined.

The court noted that the state legislature clearly intended for physician assistants and physicians to be considered members of distinct professions. It noted that Tennessee's Physicians Assistants Act and the Board of Medical Examiners' implementing rules and regulations state that physician assistants work under the supervision of physicians. The rules provide that a physician assistant shall function only under the control and responsibility of a licensed physician and that there shall, at all times, be a physician who is answerable for the actions of the physician assistant. The rules also require written protocols to be developed between the physician assistant and the supervising physician, which outline the standard of care for the physician assistant, and that the supervising physician "is responsible" for ensuring that the physician assistant complies with the applicable standard of care.

Although physician assistants exercise a degree of independent judgment in providing medical services, physician assistants do not have the same autonomy that is accorded to physicians. Physician assistants are statutorily limited to performing only those tasks that are within their range of skill and competence. Thus, it is illogical to impose significant limitations on physician assistants' scope of practice and yet hold them to the same standard of care imposed upon their supervisors, the court commented. Applying principles of tort law relevant to this circumstance, the court explained that the physician assistant takes on the role of agent, whereas the supervising physician occupies the role of principal.

The court also commented that other states have addressed the relationship between physician assistant and physician in at least three ways. Many state laws specify that a physician assistant is an agent of his or her supervising physician. In a few states, legislation provides that a supervising physician is liable for the acts or omissions of his or her physician assistant, while other states have legislation similar to Tennessee's, which refers more generally to the supervising physician's "responsibility" for his or her physician assistants.

Source: Cox v. M. A. Primary and Urgent Care Clinic, No. M2007-01840-SC-R11-CV (Tenn. June 21, 2010).

Negligence: Improper Supervision of Blood Thinner Leads to Death

An Alabama appellate court has overturned a ruling by a lower court judge that found a primary care physician not liable in the death of a patient who was allegedly not properly monitored after being prescribed a blood thinner. On August 29, 2005, the patient was diagnosed as having atrial fibrillation and her physician prescribed warfarin to prevent blood clots. The physician acknowledged that the drug is risky and the dose must be individually calibrated through careful monitoring of the patient's international normalized ratio (INR). Patients undergoing warfarin therapy should be checked frequently until their INR stabilizes, after which they should be checked no less than once per month. The therapeutic INR range for patients on warfarin is between 2.0 and 3.0.

The physician and a nurse practitioner stated that they communicated the importance of frequent testing to the patient, but such a conversation was not documented in the patient's chart. After the patient's initial INR was checked on August 31, the patient was instructed to take the drug daily and get retested on September 7. On September 7, the patient submitted a blood sample, but the INR was not evaluated. The patient saw the primary care physician the same day, but he neglected to follow up on why the INR was not evaluated. The primary care physician indicated that the nurse practitioner was monitoring the patient's INR.

On November 9, the patient called the physician's office complaining of a lack of energy and blue spots on her thigh and shoulder. A nurse indicated on a message slip that the patient should return to the office immediately, but it is unknown whether this information was communicated to the patient. On November 14, the nurse practitioner, filling in for the physician, saw the patient and found that her INR was 34.2. The nurse practitioner recommended that the patient discontinue use of the drug and have her INR checked again on November 18. The nurse practitioner testified that the physician never informed her that patients with high INRs should go to the hospital immediately.

On November 15, the patient returned to the physician's office complaining of nausea, headache, and bleeding at the site where she was tested. An INR test produced a result of 44.8 but indicated that the patient's INR was actually 0.9 due to a "mixing study." An on-call physician instructed the nurse practitioner to refer the patient to a hematologist and advise her to go to the hospital if any more complications arose. The next day, the patient was brought to the hospital unresponsive and a subdural hematoma was diagnosed; she died on November 17. A physician who testified on behalf of the plaintiff stated that had the patient gone to the hospital on November 14 or 15, she would still be alive and that the physician prescribing warfarin is ultimately responsible for proper administration of the drug.

The defendant physician, arguing that deficient treatment by other healthcare practitioners on November 14 and 15 was the proximate cause of the patient's death, successfully requested that the court dismiss the case against him. On appeal, the court found that even if other healthcare practitioners had acted negligently in the care of the patient, that fact would not absolve the primary care physician of responsibility for the patient's death if a jury were to find him negligent in his treatment of the patient. Thus, the appellate court found that the trial court had erred and remanded the case for trial.

Source: Frazier v. Gillis, No. 2100202, Ala. Civ. App. LEXIS 205 (Ala. Civ. App. Aug. 5, 2011).

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Topics

Laws, Regulations, Standards; Employment Affairs; Credentialing/Certification

Caresetting

Ambulatory Care Center; Physician Practice; Hospital Inpatient; Hospital Outpatient; Rehabilitation Facility

Clinical Specialty

Nursing

Roles

Allied Health Personnel; Medical Staff Coordinator; Legal Affairs; Risk Manager; Nurse

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Guidance

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SourceBase Supplier

Product Catalog

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ICD9/ICD10

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Publication History

​Published January 5, 2015

Citation

​ECRI Institute. Scope of practice laws for nurse practitioners and physician assistants. Physician Practice Risk Management 2015 Jan 5. https://www.ecri.org/components/PPRM/Pages/LB5.aspx