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Orthopedic Surgery Toolkit

Physician/staff advisories

The evolution of physician extenders

 

Due to our changing healthcare environment, there is an ever increasing need for additional primary care medicine providers. Physician extenders -- including Nurse Practitioners and Physician Assistants -- are lobbying to fill in those gaps. As a result, many states have introduced and passed legislation regarding the regulation of midlevel providers. The physician extenders generally want more independence with less required supervision by a physician and more collaboration. Frequently the entities representing physicians have either opposed or worked to limit the expansion of the physician extender’s authority. Below is a sampling of several bills which were introduced during the 2013 legislative session in various states.

The following legislation tightens restrictions on physician extenders:

  • In Tennessee, a bill (SB 529) was introduced to make it unlawful for a nurse practitioner to prescribe Schedules II, III, and IV controlled substances unless the prescription is specifically authorized by the formulary or expressly approved after consultation with the supervising physician. This bill was signed by Governor Haslam on May 14, 2013.
  • North Carolina legislators introduced a controversial bill (HB 181) stating that certified registered nurse anesthetists (“CRNA”s) and advanced practice registered nurses (“APRN”s) may only provide anesthesia services if the services are provided under the supervision of a licensed physician or dentist. According to our sources, this bill has passed the House and may be carried over into the 2014 short session. It is supported by the North Carolina Medical Society, the North Carolina Society of Anesthesiologists and the North Carolina Hospital Association.

The following states have proposed legislation which relaxes restrictions for physician extenders:

  • Kentucky passed a bill (HB 104) removing the requirement that physician assistants must be supervised on-site by a physician for his or her first 18 months of practice. (KRS § 311.860).
  • In Georgia, legislation was introduced to allow a physician to delegate to a physician assistant the authority to prescribe Schedule II controlled substances. This legislation (HB 676) was introduced but did not pass during this session.
  • Alabama lawmakers introduced legislation to allow certified registered nurse practitioners and certified nurse midwives to prescribe certain controlled substances. This bill (SB 229) was passed and was signed by Governor Bentley.

There are pros and cons to expanding the scope of practice of physician extenders. While physicians increasingly rely on these professionals, there are always liability concerns for physicians when supervising and employing mid-level practitioners. Regardless of the amount of independence that a midlevel provider has under the law, plaintiffs’ attorneys will usually seek to also hold the physician responsible for the care provided by a mid-level provider. Accordingly, physicians are advised to be aware of their state’s supervisory and oversight requirements for any mid-level practitioners they employ or supervise.

The increased use of physician extenders and the potential impact on liability

 

The U.S. Centers for Medicare and Medicaid Services projects U.S. healthcare expenditure to increase from a projected $2.8 trillion in 2013 to $4.5 trillion in 2021, an increase of 78%.

While Physician and Hospital care make up the majority of total healthcare spend today, other segments such as Other Professional Services and Home Health Care are projected to have even greater increases than Physician and Hospital care, 88% and 103% respectively.

Driving these significant increases in spend are a continuing shift in demographics (aging population, etc.) as well as a number of provisions within the Affordable Care Act, the new healthcare reform law. Both of these factors will continue to drive an increase in the demand for primary care services, particularly for mid-level providers such as Nurse Practitioners (NP), Physician Assistants (PA), Certified Nurse Anesthetists (CRNA) and other professionals.

As these physician extenders become more autonomous in their delivery and provision of healthcare services, their exposure to malpractice risk will likely increase commensurately.

Per the National Practitioner Data Bank, from 2003 to 2012, the percent of total indemnity paid (the amount spent on settlements and trial verdicts) on behalf of physician extenders (NPs, PAs, CRNAs, and Nurse Midwives) has increased from 1.9% to 3.4%, a proportional increase of 79% (see chart below). As an example, Nurse Practitioners have seen the count of paid claims with an allegation of ‘diagnosis’ increase more than 100% between payment years 2003 and 2012.

The traditional insurance underwriting model for physician extenders has been to view them as an extension of the insured physician, i.e., another exposure for the supervising physician. As the healthcare landscape has shifted, malpractice insurers have become perhaps more lenient in their underwriting of extenders, particularly around supervision guidelines. What once required immediate, in-person supervision may now only require checking-in over the telephone.

It is important, for the sake of good risk management, that physician extenders are supervised appropriately and that the scope of their duties is well-defined. It is likely that as physician extenders gain more autonomy in the delivery of healthcare services their exposure to medical liability risks will continue to increase. MagMutual will continue to disseminate best practice policies to ensure our insured physicians stay ahead of the curve when it comes to extenders and their associated risks.

Call coverage guidelines for physicians

Receiving phone calls at all hours of the night covering for several physicians at a time while not being familiar with their patients, not being familiar with the nursing staff, and having to go into the hospital to examine patients, are not only some of the inconveniences of being on call but create liability exposures for all on-call physicians.

Consider the following call coverage guidelines:

  • The covering physician should be in your same specialty or competent in your particular area of medicine.
  • Backup consultants should be available.
  • Hospitalized patients should know about covering physicians, and the length of time they will be covering.
  • Verify the covering physician's hospital privileges, the procedures for which he/she has been credentialed and his/her familiarity with hospital routines.
  • Use a good “Hand-Off” procedure:
    • Review hospitalized patients' current status and any problems with the covering physician.
    • Caution the covering physician against prescribing or refilling medication over the telephone. If refills are necessary, request the covering physician prescribe only enough medication to last until your return.
    • Provide the covering physician with a list of your office patients who may call and require attention.
    • Upon your return, discuss with the covering physician any changes in condition, therapies or special situations, etc.

Other suggestions for decreasing your on-call risks:

  • Institute a "Sign-Off" system whereby you can be aware of the status of hospitalized patients or those in the delivery room.
  • Ensure that you are able to reach the hospital in a reasonable amount of time.
  • Understand the high potential for miscommunication when relying upon phone communications with hospital employees.
  • Know the hospital staff and the call system; this is as important as knowing your on-call patients.
  • Once you’ve given telephone orders, review them with the nursing staff. Make sure the nurse reads back your orders precisely before hanging up, especially if it is in the middle of the night.
  • Review all on-call orders; yours, your partner's, and/or your mid level provider's, when making rounds in the morning.

Simple Caveats:

When you receive a call about a patient with whom you are not familiar, ask multiple questions about the patient, the reason for their hospitalization, their current condition, and any labs before giving an order for that patient. Even aspirin or a stool softener may not always be appropriate. Continue to question the nurse until you are comfortable with your decisions. If there is a potential life threatening condition, or your inner medical voice tells you that the information you are receiving does not make sense, go see the patient. This single effort has saved many an unfortunate outcome. It gives you real time data to make a proper decision. Incidentally, most patients and family recognize the inconvenience and appreciate your efforts to help in the middle of night.

Remember:

  • The on-call physician has a duty to all patients assigned to his/her care during the on-call period.
  • Take telephone calls from the nursing staff very seriously; ask extra questions needed to assure you of a patient's stability; take quick notes.
  • If there is any doubt in your mind about the information you are receiving by phone, go examine the patient personally.
  • Take on-call duty seriously.

A physician, sued for an incident occurring while he was taking call, once stated, “It is better to lose a few hours sleep one night than to lose hundreds of hours over the resolution of a lawsuit caused by not taking care of a potentially avoidable incident while on-call.”

Medical supervision of midlevel providers

Changes in the health care delivery system, combined with the projected shortage of primary care physicians, will increase the demand for mid-level providers (MLPs). One of the key recommendations from the 2010 Institute of Medicine’s report on the Future of Nursing was to, “remove scope of practice barriers.” Further clarified, the advanced practice RN should be able to practice to the full extent of their education and training.”1

Although there are efforts in many states to expand the independence of MLPs, most states continue to require medical supervision. Supervising physicians and employers will almost always be named as additional defendants in a medical malpractice suit involving a MLP. The most common allegations are inadequate supervision and failure to comply with state-specific supervision requirements.

The liability of the supervising physician falls under the respondeat superior doctrine; “let the master answer.” The “master” is liable, in certain cases, for the wrongful acts of his/her “servant.” Physician liability under respondeat superior doctrine for a mistake made by a MLP would depend on whether an employer-employee or a principal-agent relationship exists. Negligent supervision is often alleged when physician supervisors fail to respond, are unavailable, or provide inadequate training. Physicians may delegate responsibility, but they will retain liability.

By giving careful attention to each of these strategies, physicians providing medical supervision may reduce risks associated with MLPs: Ensure the MLPs you hire have and maintain proper credentials. Carefully delineate the scope of the MLP’s practice and set limits. Limit the MLP’s clinical activities to the scope of clinical privileges granted to the supervising physician. Mentor the MLP to enhance communication. Conduct regular and periodic reviews of the MLP’s activities and clinical responsibilities. Encourage the MLP to seek guidance from the supervising physician(s) as needed; encourage questions. Require MLPs to wear badge identification to avoid any misunderstanding about their credentials. Provide patients with a mechanism to access the supervising physician, if they choose or request. Familiarize yourself with state-specific laws related to the scope of practice and supervision requirements for MLPs. Do not allow MLPs to perform clinical activities under any physician not authorized/approved to provide them medical supervision. Ensure that the MLP is properly trained for your practice setting. Review/update job descriptions, policy statements, practice protocols, collaborative and employment agreements on at least an annual basis. Keep a copy of the collaborative agreement on file in each practice location. Develop and approve guidelines concerning prescriptive practices. At minimum, the guidelines should: Identify the supervising/collaborating physician(s); Identify the types of medications to be prescribed as well as limitations; Define provisions for managing emergencies; and Specify the frequency of reviewing prescriptions written for controlled substances. Define a process for the ongoing review of care provided for one or more frequently encountered clinical problem(s). Plan scheduled meetings with the MLP at least monthly for the first six months and at least quarterly thereafter or as often as otherwise required by state-specific requirements. Document any clinical problems discussed and a plan for improvement. Be sure that professional liability insurance includes coverage for MLPs. Contact your malpractice carrier immediately when adding MLPs.

Although some national groups are calling for more consistency in the regulatory requirements for MLPs, it is important to be aware that state-specific requirements for advanced practice RN’s (APRNs) and physician assistants (PAs) may be different for each state. It is important to familiarize yourself with state-specific requirements for each type of MLP you supervise as these may vary as well.

Listed below are professional organizations associated with MLPs:

American Academy of Physician Assistants

http://www.aapa.org

American College of Nurse Practitioners

http://www.acnpweb.org

American Academy of Nurse Practitioners

http://www.aanp.org

Additional Resources/Articles

Malpractice risks with NPs and PAs in Your Practice. (2013). Medscape Business of Medicine WebMD, LLC.

Working with midlevel practitioners

Adding midlevel practitioners (Midlevels) is steadily becoming the mainstream in physician practices. Although lawsuits against Midlevel’s have been infrequent, the increased use of Midlevel’s, coupled with the pressure of the current managed care environment, poses new liability exposures for physicians. This article deals specifically with risk management activities that reduce the physician’s potential liability associated with employing Midlevels.

What is a Midlevel Practitioner?

Midlevels include, but are not limited to, physician assistants (PAs), advanced practice registered nurses (APRNs), nurse practitioners, nurse midwives, clinical nurse specialists and certified registered nurse anesthetists. Physicians who want to bring Midlevels into their practice must be aware of the training requirements, federal and state laws, and rules and regulations governing Midlevels as well as other issues to investigate while going through the interviewing and hiring process.

Liability Associated with Midlevels

If the Midlevel is employed by the physician, such employee is considered an agent of the physician and therefore the supervision physician may be vicariously liable for such midlevel’s acts or omissions. If the Midlevel is not insured under the physician’s practice policy, the midlevel should show proof of adequate insurance coverage, and supervising physicians should notify their medical professional liability insurance carriers that they employ Midlevels.

Role of the Supervising Physician

The supervising physician is responsible for making sure that all of a Midlevel’s activities are permitted under a particular Midlevel’s professional license and are conducted within the scope of specific clinical responsibilities. Furthermore, the supervising physician is responsible for making sure that all such activities conform to the rules, regulations and policies of the healthcare facility, where the physician has privileges and that all patient services meet professional and facility standards of quality. Supervising physician should have training, be board certified or have hospital admitting privileges in a specialty appropriately related to the Midlevel’s area of practice. State laws, rules and regulations dictate how many Midlevels one physician may supervise.

Supervising a physician assistant (PA) requires compliance with state laws and Medical Board Rules and Regulations.

Collaborating with a must be done in compliance with state laws, Medical and Nursing Board Rules and Regulations.

Credentialing and Licensing

The hiring process should be documented fully. A Midlevel’s credentials should be verified with original sources and permission obtained to conduct necessary background investigations. The midlevel must be a graduate of an accredited program and hold current certification by the appropriate national certification organization. In addition, the Midlevel must be currently licensed by the state in which he or she will be practicing. The recredentialing process should be appropriate and timely.

Scope of Practice/Practice Protocols

It is important that the office staff, on-call physicians and patients understand the midlevel’s role and limits. All Midlevels should wear name badge identification and ensure that patients are not misled into believing they are physicians. Patients should also be provided with a mechanism to access the physician if necessary

Physicians, who employ, hire or supervise midlevel practitioners/ are responsible for knowing applicable state law regarding a midlevel’s legal scope of practice. This is especially true if the midlevel has prescriptive authority. In general, a licensed Midlevel may be allowed to perform a procedure for which he or she received formal education or additional training and, if necessary, has the proper protocol agreement filed with the state. In addition physician supervisors/collaborators must ensure that:

  • Midlevels are supervised as required by state law
  • Standard procedures and protocols identify the boundaries within which the midlevel is allowed to practice
  • The midlevel never practices beyond his or her skill level or scope of license
  • The midlevel is encouraged to consult with the physician supervisor when the midlevel feels it appropriate.
  • The midlevel’s clinical activities are limited to the scope of clinical privileges granted to the supervising physician.
  • Midlevels do not perform clinical activities under any physician not authorized as a supervising/collaborative physician.
  • With respect to nurse practitioners (NP) the scope of responsibilities is defined in a policy statement or collaborative agreement which every physician in the practice signs, especially those who may be called on to cover the APRN, and for whom the APRN will cover.
  • APRNs should have formal, written and current practice protocols which identify the most common problems likely to be encountered by the APRN, and specify conditions that are to be referred to or co-managed with a physician, and are signed by each APRN and physician on staff.

EMTALA Duties of On-Call Physicians; Penalties

The Emergency Medical Treatment and Active Labor Act of 1986 (EM-TALA) or what is commonly referred to as the “antidumping” statute is designed to prevent hospitals from denying emergency medical care to indigent patients from their emergency rooms without an appropriate medical screening and stabilization, although EMTALA extends even to patients who are not indigent. While EMTALA principally requires hospitals that receive Federal funds to perform certain acts, it has significant meaning for physicians who are on call to the emergency room of such hospitals as well. EMTALA also applies to physicians connected with a “dedicated emergency department” of facilities owned and operated by a hospital. It does not apply to doctor’s offices, public health centers, day surgery clinics or any other facilities that are not owned by a hospital or that do not share the same Medicare provider number as the hospital. EMTALA requires hospitals to maintain a list or roster of on-call physicians who are on call and available to provide care for patients with emergency medical conditions.

One of the purposes of the on-call list in a hospital is to ensure that the Emergency Department (ED) is aware of which physicians, including specialists and subspecialists, are available to provide treatment necessary to stabilize individuals with emergency medical conditions. Amendments to the regulations taking effect in 2003 no longer require all specialties and subspecialties represented by the active medical staff to be included on the daily on-call list for the ED. Now the hospitals have greater discretion in arranging on-call coverage. However, the hospital must have written policies and procedures to be followed when a particular specialty is not available. The governing body of a hospital without an ED must still provide policies and procedures for all the same things required by EMTALA for those that do have EDs.

According to “The EMTALA Answer Book,” policies that are hospital board approved should clearly state:

  1. A reasonable response time.
  2. Action called for when the on-call physician has not responded in the allocated time.
  3. Action called for if a particular specialty is not available.
  4. Action called for when the on-call physician cannot respond because of situations beyond his/her control.

When a properly notified on-call physician fails to appear to assist in treatment of a patient in an emergency medical condition, and the emergency room physician believes the benefits of the patient’s transfer to another facility outweigh the risks of transfer given the on-call physician’s absence, the emergency room physician has a duty under EMTALA to report the identity of the on-call physician to the hospital that receives the transferred patient, and that hospital has a duty to report the on-call physician to the Federal government. The obligation of the on-call physician to respond to a request for assistance in an emergency situation exists without regard for whether the patient is “his” or “her” patient. It makes no difference under EMTALA whether the on-call physician has previously seen the patient.

Published changes were made to the 1986 EMTALA regulations on September 9, 2003, taking effect on November 10, 2003. Some of the important changes that may affect on-call physicians are as follows:

  • Under the new regulations, hospitals have greater discretion in arranging for on-call coverage and the hospital no longer is required to have 24-hour on-call coverage for each specialty. However, the hospital must have written policies and procedures to be followed when a particular specialty is not available.
  • The new regulations permit physicians to have simultaneous on-call duties at two or more hospitals.
  • The new regulations permit physicians to schedule elective surgery or other procedures while on-call.
  • The new regulations include no changes to the civil monetary penalties for violations by a non-compliant hospital and/or physician.

Often, physicians on the medical staff are not aware of the potential liabilities they face if they violate EMTALA. Physicians may still view on-call duty as a voluntary favor to the hospital and as a minor obligation of being a member of the medical staff. With EMTALA, any physician on call must respond to a request for help with a patient’s emergency medical condition within the time allotted by the medical staff bylaws and/or rules and regulations, regardless of the patient’s ability to pay for the services. If an emergency room physician determines a patient requires the services of an on-call physician fails or refuses to appear within a reasonable period of time after notification, the on-call physician or the hospital or both may be subject to is subject to civil money penalties by the U.S. Department of Health & Human Services. The noncompliant on-call physician may also be liable to a patient in tort for any injury the patient sustains because of the physician’s failure to appear as requested.

According to OIG/HCFA, the consequences to physicians who are non-compliant are similar to those of the hospital but are specific to the physician.

  • An on-call physician who is found guilty of EMTALA violations is potentially liable for a $50,000 civil penalty as well as the loss of Medicare provider participation.
  • Some state medical boards may impose civil penalties against physicians and take licensure actions.
  • The on-call physician may be included in a civil lawsuit (i.e., medical malpractice) against the hospital if the patient suffers injury as a result of the violation.

All physicians should become aware of their responsibilities with regard to EMTALA to reduce the potential for liability.

Reference: The EMTALA Answer Book, 2010 Edition, Mark M. Moy, Publisher Wolters Kluwer

Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.