This medical board action involves a case appealed to the Vermont Supreme Court when Attorney General William Sorrell and Assistant Attorney General Kurt Kuehl tried to hold a physician liable for a midlevel provider’s actions and pursued inappropriate professional charges against that physician.
In many states, mid-level practitioners must work under a collaborative relationship with a licensed physician when providing medical care. If a physician enters into a collaborative agreement with mid-level professionals, the physician should make sure that minimum requirements for scope of practice laws and minimum supervision requirements have been met.
Case History
The State of Vermont accused a physician of unprofessional conduct after the physician assistant whom the physician agreed to supervise was found to be inappropriately prescribing narcotics. Sometime in 2009, nursing students conducted a study of drug diversion at The University of Vermont Health Network. During that study, a student interviewee commented that a certain physician assistant was a source of controlled substances. The PA’s supervising physician learned of the comment and began investigating the PA using electronic medical records. The supervising physician discovered that the PA was an outlier in prescribing opiates and other controlled substances, and concluded that the PA had engaged in improper prescribing practice. The physician then filed a complaint with the Board. The Board investigated and disciplined the physician assistant for professional negligence and unprofessional conduct.
The State then alleged that the doctor had vicariously engaged in unprofessional conduct, and was therefore subject to disciplinary action – even though the physician had no knowledge of the PA’s actions until the nursing student investigation. Under the theory of vicarious liability, the State alleged that the physician was “legally liable” for the PA’s actions. The State also made four additional allegations of unprofessional conduct related to supervision of the PA, alleging that the physician’s supervision “failed to conform to essential standards of acceptable and prevailing practice,” that the physician “failed to adequately monitor the PA’s practice,” and that the physician failed to “provide meaningful review of the PA’s practice.”
A hearing was held and the hearing panel recommended that the Board find the physician guilty of unprofessional conduct, but refrain from issuing any sanctions. The committee found that “the acts of the agent . . . are the acts of his principal,” and therefore believed that the physician “legally liable” for the PA’s unprofessional conduct. The committee recommended that the remaining allegations against the physician be dismissed. The Board reviewed the evidence and committee’s recommendations and decided that the physician engaged in no unprofessional conduct whatsoever and could not be held liable for actions of the PA when the physician was not aware of the conduct. The Board then dismissed all charges against the physician. Despite the Board’s findings, Attorney General William Sorrell and Assistant Attorney General Kurt Kuehl pursued an action against the physician and appealed the Board’s decision.
The Appeal
In reviewing the case, the Supreme Court first looked at the duties of a supervising physician under Vermont statutes. Under 26 V.S.A. § 1739 (which was in effect at the time of these occurrences):
The supervising physician delegating activities to a physician assistant shall be legally liable for such activities of the physician assistant, and the physician assistant shall in this relationship be the physician’s agent.
NOTE: The Vermont legislature has since changed the wording in 26 V.S.A. § 1739 to reflect that:
Physician assistants are responsible for their own medical decision making. A participating physician in a practice agreement with a physician assistant shall not, by the existence of the practice agreement alone, be legally liable for the actions or inactions of the physician assistant; provided, however, that this does not otherwise limit the liability of the participating physician.
The Supreme Court noted that the term “legally liable” includes liability for negligent acts, but does not encompass responsibility for violations of professional obligations. The Court noted the distinction between “legal liability” and “professional responsibility,” stating that in this case the legislature chose to make a physician “legally liable” for the acts of a supervised PA rather than making the supervising physician “professionally responsible” for those acts. The Court held that the Vermont legislature emphasized the term “liability” in the statute so that a plaintiff in a medical negligence case would be able to recover from the supervising physician where the mid-level provider provided substandard medical services.
In this case, the Board found that the supervising physician did not fail to follow the progress of the PA’s patients, that his process for reviewing the mid – level provider’s medical practice exceeded the requirement specified by the Board, and that his review of PA-generated charts met the requisite standard of care. Any finding of unprofessional conduct in this case would necessarily have been based upon the PA’s conduct alone because the Board found that the supervising physician did not fail to meet the standards of care, and in one case exceeded that required by the Board. The State action against the physician was therefore dismissed.
A link to the Vermont Supreme Court opinion is here.
Takeaways
State of Vermont Attorney General William Sorrell and Assistant Attorney General Kurt Kuehl pursued inappropriate professional charges against a physician that conflicted with statutes, case law and the medical board’s findings. Ultimately, the doctor prevailed, but he had to appeal all the way to the Vermont Supreme Court to do it. The Vermont Supreme Court’s holding showed that there was no statutory basis for the State’s claims.
If a physician filed a lawsuit against someone without a legal basis, they would likely be ordered to pay for the opposing party’s attorney’s fees and costs. When Attorney General William Sorrell and Assistant Attorney General Kurt Kuehl pursued baseless claims against a physician, the physician’s hopes of recouping attorneys’ fees and costs are limited.
Note that the Supreme Court’s holding emphasized that the Vermont legislature sought to “affirm the path for a tort plaintiff to recover from the supervising physician where the PA has committed a tortious act.” In other words, if a physician assistant or nurse practitioner commits malpractice, the legislature intended that the doctor will be liable those actions. The updated language in Vermont statute 26 V.S.A. § 1739 blunts that language, but does not eliminate physician liability for supervising physician extenders.
From a risk management standpoint, signing supervising agreements for mid-level providers or signing employment contracts agreeing to supervise mid-level providers creates an increased liability risk. By signing such documents, physicians may assume legal responsibility for errors in an advanced practice provider’s medical treatment. Claims against physicians under the legal theory of negligent supervision may not be covered under traditional medical malpractice insurance policies. If you agree to supervise nurse practitioners, nurse anesthetists, physician assistants, or other nonphysician clinicians, check your insurance policy to assure that medical liability claims relating to patient care by mid-level practitioners are covered.
Want to read more articles about medical board actions against physicians? Check out the Medical Boards section of my blog.