Nurse Practitioner and Physician Assistant Standard of Care

As more hospitals and staffing companies hire advanced practice providers to supplant physicians, defining the standard of care for a nurse practitioner or a physician assistant becomes important to determine the potential liability associated with a midlevel provider’s actions.

Services provided by any health care provider must meet the standard of care. In medical malpractice, the standard of care is defined as what a reasonably well-trained medical provider would do under the same or similar circumstances. The standard doesn’t require that a patient receive the best care available, only that patients receive reasonable care. Another way of looking at the concept is that the medical care provided cannot be “negligent” under the circumstances. The standard of care is also situation-specific and fact-specific. That’s where the “same or similar circumstances” part of the definition comes in.

If a medical provider’s care is negligent, the provider could be liable for medical malpractice. To prove a medical malpractice case, a plaintiff would have to show that a medical provider had a duty to treat the patient, that the medical provider’s actions breached the standard of care, and that the breach in the standard of care caused the patient damages.

The Nurse Practitioner Lobby’s Demand for Independent Practice

Traditionally, nurse practitioners and physician assistants have had to collaborate with a physician who oversees the medical care provided. Several professional organizations now demand that legislatures allow midlevel providers to work as independent practitioners without the oversight of a physician – especially in primary care settings.

An article by the editors of the Advanced Emergency Nursing Journal states that using the term “midlevel provider” and “physician extender” to describe nurse practitioners is inappropriate because

The American Academy of Nurse Practitioners (AANP, 2010) and the Emergency Nurses Association (ENA, 2011) have position statements supporting the use of the term NP rather than MLP and PE. In these statements ENA and AANP purport that the standard of care for patients is the same as that provided by a physician. NPs provide high-quality, comprehensive, affordable care equal to that of other providers (e.g., medical doctor, doctor of osteopathy; AANP, 2007a, 2007b).

Link to the article here. PDF contained here if link goes dead.

The American Association of Nurse Practitioners has a position statement on the standards of practice for Nurse Practitioners. The standards for a Nurse Practitioner include performing a medical history, diagnosis of disease, developing a plan of care (including ordering diagnostic tests, prescribing medications, ordering consultation, and coordination with health care professionals), implementing that plan of care, and following up on that treatment plan. According to the AANP, “Nurse practitioners combine the roles of provider, mentor, preceptor, educator, researcher, advocate, and interdisciplinary consultant.”

Link to AANP Position Statement here. PDF contained here if link goes dead.

Using these standards, there is no difference between the wide range of health care provided by a nurse practitioner and a licensed physician.

Do Nurse Practitioners and Physician Assistants Provide Inferior Medical Care?

Despite asserting that they have a level of skill “equal to that” of physicians and pointing to studies showing no evidence of different patient care outcomes, there is one situation in which midlevel providers vehemently declare that they are NOT equivalent to physicians: Medical malpractice lawsuits.

When sued for providing care equal to that of physicians, midlevel providers want to be judged by different standards. In an office, the patient care provided by a physician and an advance practice provider are supposed to be considered equivalent. In court, the patient care is so different that neither profession is permitted to testify as an expert witness regarding legal standards required of the other profession. If APPs provide care “equal to” physicians, independent APPs must be judged by the standard of care required of physicians and both professions should be permitted to provide expert opinions about (and be cross examined about) standard patient care. Independent midlevel providers in a specialty practice should similarly be held to the standards of the physician specialists they replace.

The notion that the depth of one’s education should justify different standards of care for the exact same medical services makes no sense. It is illogical to argue that less training and experience should be ignored when providing medical care “equal to that of physicians” while also arguing that the same lack of training and experience should be a shield from liability in a medical negligence action. Physicians do not have separate standards of care based on their level of training. First year residents, fourth year residents, fellows, and veteran attending physicians are all held to the same standard. General practitioners are held to the standard of specialists when performing specialty care. If a family physician performed brain surgery on a patient, that physician would be held to the standard of a neurosurgeon, not to the standard of a family physician. If the physician acts as an architect and designs a faulty bridge, the physician’s actions are judged not by medical standards, but by the standard of what a competent architect would do.

There IS a different standard of care between a medical student and a physician. But because of that different standard, medical students have a very limited “scope of practice” that is clearly delineated when they begin working at hospital. Think about how the law would deal with a medical student who unsuccessfully tried to independently manage a trauma patient without any input from a physician. There would obviously be a medical board action for unlicensed practice of medicine. If the medical student was sued for malpractice, should the standard of care required for the medical student be that of a similarly trained medical student or should it be for that of a reasonable trauma surgeon? If judged as a student, the student likely walks away without liability while if judged to the standard of a trauma surgeon, the student is likely liable for a huge judgment.

Consider a situation in which a medical provider has degrees as both a physician and a midlevel provider. When independently seeing patients, should the provider’s medical care be judged by the standard of a reasonable midlevel provider, by the standard of a reasonable physician, or by the standard of a reasonable practitioner with both degrees?

• If judged solely by the standards of a midlevel provider, then we acknowledge that the education and training received by midlevel providers and MDs is interchangeable and there should be no distinction in scope of practice or in liability for practice. Medical school, residency training, fellowship, other advanced education, and a medical license should be considered irrelevant. Midlevel providers are, for all intents, physicians.
• If judged solely by the standards of a physician, then we acknowledge that physicians practice at a higher level of care than that of midlevel providers (otherwise, we would just use the standard of a midlevel provider). If actions of someone with medical and midlevel degrees should be judged by a higher standard of a physician’s practice, we need to question why scope of practice laws and hospital policies allow patients to receive independent care from midlevel providers that we acknowledge is a lower standard than that provided by a physician.
• If the provider could only be judged by the standards of a practitioner possessing both degrees, we would acknowledge that there aspects of each training program that are unique, but we would also have to demonstrate precisely how those distinctions would be relevant in the provision of medical care.

The Financial Incentive to Replace Physicians with Nurse Practitioners and Physician Assistants

Why are hospitals and staffing companies replacing physicians with advanced practice providers? Cost savings.

This ad from Envision Physician Services states that “average hourly compensation for APPs is 66% less than that of physicians.”

Another presentation by Envision recommends that hospitals “employ the least expensive resource to accomplish the mission” (emphasis in original), noting how APPs can independently manage 25-35% of cases in an emergency department. The same presentation states that, prior to their final year of residency, resident physicians tend to “add complexity and slowness to the EM clinician’s day.” Stop to consider this logic: Envision recommends that Advanced Practice Providers with as little as 26 months of training (medical students require 4 years of training to graduate) replace emergency physicians, yet states that junior resident physicians with 7 years of training “add complexity and slowness” to an emergency physician’s clinical practice.

When emergency physicians are replaced by midlevel providers, there also may be a lack of transparency with patients. Emergency physicians are required to be board certified in their specialty before they can be credentialed to practice in most hospitals. For emergency medicine, the process of board certification requires 4 years of medical school (including 2 years of clinical care), 4 years of residency training, and success on a multi-part board certification exam. Staffing companies and hospitals could require newly graduated midlevel providers with 26 months of training and little or no emergency medicine experience to provide complex health care services for a critically ill patient in an emergency department. While a patient and family would generally know that emergency physicians have some baseline amount of training and experience by virtue of their board certification, a patient would have no idea about a midlevel provider’s training or professional experience and there is no requirement that the hospital or staffing company disclose those facts to the patient or the family. Just as a hospital that allows lesser trained physicians to perform neurosurgery as a cost-saving measure may be subject to informed consent and negligent credentialing claims, the potential lack of transparency in practice agreements allowing advanced practice providers to work as specialty physicians may create informed consent or negligent credentialing issues.

If Nurse Practitioners and Physician Assistants Provide Care Equivalent to Physicians, Why Are Collaborative Agreements and Physician Supervision Necessary?

One of the sanctions that a hospital or a state medical board can impose on a physician is a requirement for supervised practice. The idea of supervision is that to assure patient safety, a more qualified practitioner needs to monitor the appropriateness of medical care provided by another practitioner.

The idea of supervision raises another question when comparing the medical care of advanced practice providers to that provided by physicians. If the delivery of health care between the two sets of providers is equivalent, why should there ever be a standard care arrangement for one provider to supervise another? If supervision is deemed necessary, why can’t an advanced practice provider supervise the care provided by a physician? These issues seem to be ignored, but they are central to the parity argument.

Supervision requirements amount to an admission that the supervised health professional may lack sufficient experience or training such that a potential patient safety issue may occur. A supervising physician who enters a written or electronic practice agreement pursuant to state law has now assumed the role of instructor where the supervising physician must simultaneously provide patient care while overseeing the midlevel provider’s actions, correcting the midlevel provider’s errors, and potentially teaching the midlevel provider essential medical skills not taught during training.

A requirement that physicians supervise and review delivery of health care by advanced practice providers also acknowledges that supervising physicians know the legal standards for a practicing advanced practice provider and should therefore be able to provide expert witness testimony regarding those standards. If a supervising physician was not aware of the applicable standards for advanced practice providers, only another advanced practice provider would be qualified to supervise the care of physician assistants or nurse practitioners.

Hospitals and staffing companies who hire advanced practice providers with potential gaps in training and lack of professional experience may try to avoid liability by contractually requiring physicians to accept responsibility for supervising those providers. Especially in an emergency department setting with the surge of critically ill patients during this pandemic, such staffing decisions may create patient safety issues. The most common allegation in closed claims against midlevel providers in medical malpractice lawsuits is “error in diagnosis.” There have been many multimillion dollar verdicts against physicians who signed off on the charts of midlevel providers in a supervisory role only to be later notified that the midlevel provider’s diagnosis and treatment plan was inappropriate. As the emergency medicine market trends further toward an oligopsony, contractual demands that physicians assume liability for midlevel provider actions will become more prevalent.

Summary

• Nurse practitioners and physician assistants who provide independent medical care similar to that provided by a physician should be held to the legal standards of a reasonably well-trained physician.
• To protect the public welfare, all practitioners who practice independently should be properly trained and should be required to show minimum levels of proficiency in their chosen field of practice.
• If there is no difference in the practices and outcomes between physicians and advanced practice providers, there should be no restrictions on the ability of nurse practitioners and physician assistants to practice independently. Hospitals and staffing companies should be permitted to hire and credential nurse practitioners and physician assistants to perform medical diagnosis and treatment in all specialties.
• It is a potential patient safety issue to require a physician in a clinical practice setting to simultaneously provide care to patients and to supervise the medical care of one or more midlevel providers. Allowing all midlevel providers to practice independently would resolve this issue.
• If hospitals and staffing companies make a financial decision to credential providers with less training and less experience to act as licensed physicians, they and the advanced practice providers that fulfill those roles should be solely liable for any bad outcomes that occur because of those decisions. If a hospital credentials a family physician to act as a neurosurgeon and there is a bad outcome during a surgery, the hospital and the family physician would have to answer to the patient’s family, the state, the licensing boards, and the courts for those bad outcomes. Credentialing midlevel providers to act as physicians should be no different. If Envision wants to replace emergency physicians with advanced practice providers to make an extra 66% in profit, Envision and its contracted hospitals should decide whether the financial benefit may be at the expense of accepted medical practice.
• The legal responsibility associated with credentialing and supervising midlevel providers should rest solely with the entity that hires them. Physicians should not bear the liability burden for staffing decisions made by hospitals or staffing companies and should be contractually protected from liability should they choose to engage in such supervision.

UPDATE November 20, 2022 – The Case of Tucker v. Ortiz

In the Maricopa County, Arizona case of Tucker v. Ortiz (CV2019-096968), Judge Stephen Hopkins has reportedly dismissed most of a plaintiff’s claims against naturopath Jose Ortiz after Ortiz allegedly botched a liposuction procedure on the plaintiff. The plaintiff alleged that the liposuction procedure left him with hardened areas underneath the skin of his abdominal wall that continues to cause him pain. The judge reportedly refused to allow either a naturopath or a plastic surgeon to testify against the defendant because the naturopath had never performed plastic surgery and because the plastic surgeon had performed liposuction, but was not a naturopath. Under Arizona Statute 12-2604, an expert testifying against a “specialist” must be in the same specialty or the same “claimed specialty” as the party against whom the expert is testifying and must have devoted most of his or her professional time to active clinical practice or teaching of that specialty.

Although no court documents are available online, according to a news report, Judge Hopkins reportedly interpreted the law to require that only a naturopath practicing plastic surgery could testify against Defendant Ortiz. In explaining his ruling, Judge Hopkins reportedly stated he shared the Plaintiff’s concern that “a physician practicing far beyond the bounds of his area of practice could ‘remove himself from scrutiny’ under the statute,” but also stated he “does not have the power to re-write the statute.” Civil claims for the unlicensed practice of medicine and for medical negligence were dismissed and the only remaining claim is one for battery. It is unclear whether Jose Ortiz was reported to the Arizona Medical Board for unlicensed practice of medicine or whether plaintiff’s attorney Robert Gregory alleged lack of informed consent, res ipsa loquitur, or even consumer fraud in his complaint.

The plaintiff in the malpractice lawsuit filed a total of 15 separate allegations in a complaint against Jose Ortiz to the Naturopathic Physicians Medical Board. The Board reportedly dismissed 14 of those allegations. The only remaining issue in that complaint involved a non-disciplinary order related to medical charting and patient intake.

The reported facts behind the Ortiz case and ruling demonstrate the potential threat to public health when non-residency trained providers are allowed to perform potentially complex surgical procedures on patients. Judge Hopkins read this law too narrowly. The “specialty” involved in this case was plastic surgery. Whether the specialty was being performed by a surgeon, a chiropractor, a naturopath, or a medical student is irrelevant – they should all be held to the standard of a competent plastic surgeon. Those who practice in a specialty are held to the standards of that specialty. Using Judge Hopkins’ logic, “Dr.” Ortiz could technically have botched neurosurgery or cardiac surgery on multiple patients and would have had similar success in dismissing lawsuits against him if the plaintiff’s attorney was unable to secure testimony of naturopaths practicing in those specialties. The logical progression of Judge Hopkins’ ruling would lead to nonsensical and potentially disastrous results.

Hopefully the plaintiff in this case appeals this ruling. In the meantime, caveat emptor.

#################

See more articles on medical legal topics on the Medicolegal section of this blog.