Managing potential liability in the physician office


Managing potential liability in the physician office

Several factors should be taken into account when devising a risk mitigation plan where nurse practitioners and physician assistants are employed, says Ann D. Gaffey, senior vice president, healthcare risk management and patient safety at Sedgwick.

Without the use of nurse practitioners (NPs) and physician assistants (PAs) to support physicians in providing care in the office setting, it would be even more difficult to care for the volume of people seeking healthcare in the US today.

NPs and PAs practice in all 50 states and Washington, DC, improving access to care, quality of care, and patient satisfaction across the country. In the most recent data reported by the Henry J. Kaiser Family Foundation, there were 180,233 NPs1 and 83,466 licensed PAs in the US2. Compare that to 834,769 total professionally active physicians3, and we have almost 1.1 million providers, a quarter of which are either independently practicing or working in a supervised capacity in a team to help physicians deliver much-needed care.

Where the confusion may lie is in how each of these providers may practice, based on how they are regulated in different states. Both professions have prescriptive rights in all 50 states, with some limitations varying from state to state. While some states have no requirements for an NP to have a collaborative relationship with a physician or other provider, making NPs more ‘independent’, other states do have requirements for a collaborative agreement to be in place.

For PAs, as noted by the American Association of Physician Assistants, “Some state PA practice laws and regulations use the word ‘protocol’ to describe the practice arrangement between a physician and a PA, while other states direct physician-PA teams to use detailed clinical protocols to define a PA’s practice. These differing uses for the term ‘protocol’ create confusion for PAs and those who hire them.”4

Often referred to as ‘mid-level providers’ or ‘physician extenders’, the professional organizations supporting these two groups feel differently. The American Association of Nurse Practitioners (AANP) opposes use of terms such as ‘mid-level provider’ and ‘physician extender’ in reference to NPs individually or to an aggregate inclusive of NPs.

The association’s position is that: “NPs are licensed, independent practitioners. AANP encourages employers, policy-makers, healthcare professionals, and other parties to refer to NPs by their title. When referring to groups that include NPs, examples of appropriate terms include: independently licensed providers, primary care providers, healthcare professionals, and clinicians.”5

Similarly, the American Academy of Physician Assistants believes that, whenever possible, PAs should be referred to as ‘physician assistants’ and not combined with other providers in inclusive non-specific terms such as ‘mid-level practitioner’, ‘advanced practice clinician’, or ‘advanced practice provider’.6

Putting specific state laws and regulations aside, at the end of the day the supervising physician of an NP or PA is ultimately responsible for the care provided in their name, and retains the professional and legal responsibility for care rendered by both NPs and PAs.

In legal terms, several theories of liability are relevant, and in cases stemming from the office practice setting they may include direct liability and vicarious liability allegations. Because in most physician practices the NP or PA is employed by the group, the doctrine of respondeat superior is likely to apply. In these instances where there is an employer-employee relationship, the principle applies that the employer or ‘master’ must answer and be responsible for the acts and omissions of the employee performed within his or her employment.

As noted by Saxton and Finkelstein in Physician News: “When appropriate supervising and collaborative measures are not in place, or are not followed, patient care can be negatively impacted and physician liability exposure can increase. Rarely are lawsuits filed solely against a mid-level; but rather, lawsuits involving care by a mid-level focus on the supervising physician as well.”7

When professional liability claims are made, frequently seen allegations include failure or delay in diagnosis due to inadequate physician supervision, inadequate examination, delayed referral to a supervising physician, failure to have a collaborative agreement in place, failure to follow the requirements of the collaborative agreement, and the NP or PA practicing outside the scope of their agreement.8,9,10

Drilling into professional liability claims experience for NPs, four locations accounted for a significant percentage of all the closed claims in the CNA NP 2012 Liability Update analysis, including 36.5 percent arising from the physician office setting. Office setting claims also represented a higher average paid indemnity than the overall average due to several high-indemnity paid claims. Almost 75 percent of the closed claims against NPs were diagnosis-related and treatment and care management-related allegations.11

Reduce the risk

When designing a risk mitigation plan as part of employing and supervising NPs and PAs to support patient care in the office practice setting, consider the following:

1.   Verify that adequate liability coverage for NPs and PAs will be provided by the supervising physician’s professional liability carrier.

2.   Have a clear understanding of state law regarding scope of practice for NPs and PAs in the state or states the practice has offices, including but not limited to the number of providers a physician may supervise, limits on sequential visits a patient may have with an NP or PA for ongoing problems, and where the supervising physician may geographically reside when an NP or PA is seeing patients. Seek legal counsel for clarification if necessary.

3.   Conduct the appropriate due diligence during the hiring process to confirm training, certification, and licensure of the individual. This important step can minimize the risk of litigation around negligent selection and even criminal charges, should a person hired be unlicensed.

4.   Develop written supervisory agreements, protocols, etc., as directed by state law and regulation. Ensure a copy of the agreement is available in the office, on file with the appropriate Board as directed, and made available to the Board upon request.

5.   Verify that each NP or PA has a clear understanding of his/her obligations as part of the team, including scope of practice, limits on sequential visits with patients with ongoing acute problems, and methods and frequency of communication with supervising physicians. Expect and encourage ongoing communication with the supervising physician.

6.   Ensure the supervising physician co-signs only progress notes that have been reviewed and that the plan of care is agreed upon.

7.   Ensure each provider is appropriately identified by name and title to patients, through use of clearly visible name tags and personal introduction to every patient.

8.   Establish regular meeting times to review complex patients, share information, clarify treatment plans, and maintain ongoing communication channels.

9.   Ensure the administrative staff members scheduling patient visits are aware of any limits on repetitive visits by an NP or PA, in an effort to reduce the likelihood that a patient could be seen more times in a row by an NP or PA than is allowed, based on state law.

10. Ensure the supervising physician conducts periodic performance review and random chart reviews with the NP or PA and that these activities are documented.

11. Be diligent in scheduling annual reviews of any written agreement or protocol with the NP and PA in the office setting, recognizing that these care teams evolve in the way they deliver care. As skills and confidence between team members grow, the scope of practice may extend in clinical practice, but not be reflected in the written agreements that confirm what the physician has agreed to.

There is no doubt that the addition of NPs and PAs in the team care-delivery model can help address access to care and provide an added benefit to patient care in the office setting by increasing educational opportunities for patients, improving efficiency, and increasing patient satisfaction. With the appropriate structure in place to establish processes and expectations, and to evaluate the care delivered by NPs and PAs, liability risk to physicians, NPs and PAs can be diminished, and our growing patient population care needs met. n

Ann D. Gaffey, RN, MSN, CPHRM, DFASHRM, is senior vice president, healthcare risk management and patient safety at Sedgwick. She can be contacted at:

1. Henry J. Kaiser Family Foundation:  Total Nurse Practitioners by State (2012). Found at:

2. Henry J. Kaiser Family Foundation: Physician Assistants by Primary State of Employment (2010). Found at:

3. Henry J. Kaiser Family Foundation: Total Professionally Active Physicians (November, 2012). Found at:

4. American Academy of Physician Assistants. State Law Issues: PAs and Protocols. January, 2011. Found at:

5. American Association of Nurse Practitioners: Use of Terms Such as Mid-Level Provider and Physician Extender (2013). Found at:

6. American Academy of Physician Assistants Policy HP-3100.1.3, Adopted 2008, Reaffirmed 2013.

7. Saxton, J. and Finkelstein, M. (2010). Healthcare Reform, Mid-Level Providers, and Liability Risk. Physician News. Found at:

8. Ibid.

9. Crane, M. Malpractice Risk with NPs and PAs in your practice: January 2013. Found at:

10. Page, A. Liability Issues with Physician Extenders. American Academy of Orthopedic Surgeons, AAOS Now, March 2010. Found at:

11. Nurse Practitioner 2012 Liability Update – A Three Part Approach. CNA Insurance and Nurse Service Organization. 

Ann D. Gaffey, Sedgwick, NPs, PAs, Henry J. Kaiser Family Foundation, American Association of Physician Assistants, USA