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12/12/2017
NMGMA Monthly Meeting

Physician is Vicariously Liable...
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PHYSICIAN IS VICARIOUSLY LIABLE FOR PHYSICIANS ASSISTANTS

but not directly liable to the Patient for negligence

 

          Nurse practitioners and physician’s assistants own their own practices.  They frequently practice in settings such as urgent care centers in which no physicians are ever physically present.  By definition, they are “physician extenders.”  But, to practice, PAs and NPs need to have a “supervising physician.” 

 

          The role of the supervising physician is governed by statute and regulations issued under the authority of the statute.  Pursuant to those laws in Tennessee, the duties of a supervising physician are:

 

          a.       To be available to the PA for consultation

          c.       To develop protocols jointly with the PA

          d.       To personally review 20% of the PAs patient charts on a monthly basis

          e.       To personally review charts for patients with conditions outside of the protocols

          f.        To visit the practice site once every 30 days.

 

Significantly, the law imposes no limit on the number of PAs that a physician may supervise, and the law does not require a supervising physician to be present at the practice site when services are rendered.  Thus, a person with a medical license may make a significant amount of compensation for providing “supervision.” 

 

          What is the malpractice liability of the “supervising physician” if the PA or NP commits malpractice?  In Tennessee, the supervising physician:

 

a.       Is not obligated to perform any duties not specifically set forth in the law.

 

b.       Is not obligated to review files for patients who are outside of the protocols unless the PA provides those files for review.

 

c.       Has no doctor-patient relationship with the PAs patients who he or she does not see, communicate with or care for.

         

           Specifically, in Buman v. Gibson,  No. W2013-01867-COA-R3-CV (Tenn. Ct. App. Aug. 11, 2014), the court of appeals stated that a supervising physician who never interacts with the patient can defeat a malpractice lawsuit simply by showing that he or she complied with the five  duties of the supervising physician.  In Buman, the Plaintiff claimed that the supervising physician was guilty of negligence because he did not review the patient’s chart even though the patient had a condition that was outside of the established protocols.  The undisputed evidence was that the PA never sent the supervising physician the patient’s file.  The court of appeals stated that it was the duty of the PA, and not the supervising physician, to identify patients who were outside of the protocols and to submit those files for review.  If the supervising physician never saw the patient file, the supervising physician cannot be guilty of negligence.  In a footnote, the court of appeals suggested that the protocol “include a uniform method for handling cases that fall outside these five specifically delineated categories”, but the court held that the absence of a system was not negligence. 

 

          The court of appeals rejected the patient’s contention that the supervising physician possessed a common law duty to the patient noting that there was not a “physician-patient” relationship because the physician “never saw, communicated with, or directly cared for” the patient.  The court of appeals also rejected the argument that the physician was unqualfied to supervise the PA because only a small percentage of his practice was devoted to the area primarily practiced by the PA.  The court of appeals noted simply that the legislature had made the determination that PAs perform numerous routine procedures so that physicans can perform more complex medical problems.

 

          So, in Tennessee, it appears to be best to provide only minimum supervision if a physician desires to avoid claims of malpractice.   One caveat; a supervising physician can be held vicariously liable for the negligent supervision of a physicians’ assistant.  In Tennessee, a PA “occupies the role of agent for the supervising physician.”  So long as the PA acts in the scope of that agency, then the supervising physician is vicariously liable for the PA’s negligence.  This liability exists even though the supervising physician does not “employ” the PA.