Emergency physicians (EP) can expect to be named in any malpractice lawsuit involving care provided by a physician assistant (PA), but the question then becomes "Will the EP get dropped from the case?"
"Of course we’d all like to see the EP be dropped if the EP did not see the patient. But that will not always be the case," says John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA.
Burton says these factors typically determine whether the EP will be dismissed from such a claim:
Did the EP see the patient?
"If the EP saw them, he or she is not going to be dropped," says Burton.
Ken Zafren, MD, FAAEM, FACEP, emergency programs medical director for the state of Alaska and clinical associate professor in the Division of Emergency Medicine at Stanford (CA) University Medical Center was an expert witness in a lawsuit in which the EP was named, but not the PA. The EP signed the chart, and the plaintiff’s attorney did not initially realize that the patient had been seen by a PA.
"The PA was on the right track and was derailed by the EP," says Zafren. "The PA was not added as a defendant." In this case, the EP claimed, not very convincingly, to have examined the patient and to have ruled out the eventual correct diagnosis on the basis of his exam. "Many times, people assume that the EP has it right and that the PA was negligent. That is not always the case," says Zafren.
Does the ED’s policy require the EP to see the patient?
Some EDs require EPs to see every patient that the PA sees. "But in my experience, that’s pretty unusual," says Burton. "This means many patients seen by the PA aren’t seen by the EP, and that there are policies that support that practice."
ED policies should clearly state the expectations for the supervising physician’s participation in the care of patients that are seen by PAs, he recommends. "If the policy is that the EPs are not required to see every one of these patients, it’s for the physician’s gain for the policy to say so very clearly," says Burton.
EPs should ask to see the policy that covers this, he advises. "Where we get into trouble is if the PA and EP are both named in a suit, and the EP did not see the patient, and the policy does not clearly articulate whether the EP has to see those patients," says Burton. "There could be problems in defending the case."
Burton has reviewed dozens of cases involving PAs in the ED setting, "and in every one, the EP has been dropped if he or she didn’t see the patient and the ED’s policy says the EP isn’t required to."
Burton says policies should be general as to which patients the EP doesn’t have to see. "As soon as you start getting into specifics around vital signs and chief complaints, it ends up being a slippery slope," he explains.
Since Virginia’s statute specifically addresses the oversight of PAs for supervising EPs, Burton uses this exact language in the ED’s policy, stating that "The PA cannot solely care for a patient who is unstable."
"It is then the expectation that the PA informs the EP that the patient is unstable, and transfers or co-participates in the care with the EP," says Burton. "We don’t go into the details of defining unstable.’"
If Burton were practicing in another state, however, he would make the policy less specific, and simply state that the EP is required to participate in the care of any patient when this is specifically requested by the PA or the patient.
"You want to be general around defining who the EP has to see, so the department can flex to meet the needs of that particular shift and the skill mix that it requires," says Burton.
EPs can then truthfully state that they met the expectations as outlined in the hospital policy. "That would hopefully lead the plaintiff attorney to drop the suit," says Burton. "But many EDs do not have clear policies on this, and it creates a liability for EPs."
Some EPs write a note in the chart stating that they did not see the patient and don’t agree with the patient’s care. "What they are trying to do is say, Whatever happens to this patient, I don’t have any responsibility for it,’" says Burton. "They believe it will absolve them. In reality, it makes it less likely they’ll be dropped."
This type of statement is indicative of tension involving oversight of PAs in the ED, he explains. "We want the message to be that everyone is on the same team, and meeting their roles as defined by the ED’s policy," says Burton.
Do the EP and the PA have the same insurer?
"If the hospital, the EP, and the PA are all insured by the same company, then there is really no gain for the plaintiff to have more defendants on the case," says Burton. If the EP is kept in the case, the plaintiff attorney has the burden of proof to show that the patient’s bad outcome occurred as a result of not being seen by the EP. "So they are better off just making the argument that the PA didn’t meet the standard of care," says Burton.
If the EP’s group has their own separate policy, however, "there is very clear motivation to keep the EP in the case," says Burton.
In a recent case that Burton reviewed, a tendon injury was missed in a patient with a large forearm laceration. The plaintiff was ultimately unable to undergo surgical repair due to the significant delay in diagnosis. The initial care in the ED was provided by a PA with no physician assessment.
"The PA record was very good, with a physician signing the chart," says Burton. "However, there was no denying the missed injury and subsequent delay to diagnosis in the case." Lack of follow up, which would have created the opportunity to re-evaluate the injury, was clearly a contributing factor.
Both the PA and EP were hospital employees under the same insurance policy. After reviewing the records and an initial discussion regarding the claim, the plaintiff dropped the EP and proceeded with the case against the PA and the follow-up provider. "The eventual outcome was a settlement on behalf of the plaintiff," says Burton.
- John Burton, MD, Chair, Department of Emergency Medicine, Carilion Clinic, Roanoke, VA. Phone: (540) 526-2500. Fax: (540) 581-0741. E-mail: [email protected].
- Ken Zafren, MD, FAAEM, FACEP, Alaska Native Medical Center, Anchorage, AK. Phone: (907) 346-2333. Fax: (907) 346-4445. E-mail: [email protected].
