The increased utilization of advanced practice providers (APP), who can examine and diagnose patients under physical supervision, necessitates a closer look at the legal duties of the supervising physician. These authors provide a guide to building a relationship with an APP, avoiding legal liability, and following the rules.
An advanced practice provider (APP) is a clinical medical professional who provides patient care under the supervision of a physician. Note: In this article, the term “advanced practice provider” will be used to refer collectively to advanced practice registered nurses and physician assistants. APPs include advanced practice registered nurses (APRN) and physician assistants (PA). In some contexts, certified registered nurse anesthetists (CRNA) may also be referred to as advanced practice providers; but this article is limited to issues relating to the supervision of APRNs and PAs.
These APPs examine patients, diagnose them, and provide some treatment, all of which must be delegated by a supervising licensed physician. However, there are exceptions to this delegation requirement, depending on the laws and regulations in the state where the APP practices.
An increased demand for health care providers has resulted in expansion of the roles of APPs, requiring closer examination of the legal duties required of the supervising physicians. As demand continues to rise for the kinds of care APPs are uniquely suited to provide—along with the rise in popularity of careers in health care—physicians and health care entities need to understand the required degree of physician supervision and the potential liability associated with the use of APPs.
While the increase in APPs has benefited health care providers (by reducing demand) and the populations they serve (by increasing access), these benefits have not been without growing pains. Health care providers and lawmakers have struggled to find a balance that employs APPs to their fullest potential while ensuring they practice within the scope of their training. For physicians, a major concern is the potential liability exposure for the actions of their APPs.
The most common lawsuit allegations related to APP care are:
• Lack of adequate physician supervision;
• Inadequate examination;
• Delayed referral to a specialist (including referral to the supervising physician); and
• Failure to diagnose.1
Across all specialties, diagnostic errors are the most prevalent medical liability claim involving APPs. Moreover, root cause analysis has shown that inadequate supervision is frequently the cause of a failure or delay in diagnosis.2
Practice Tips for Supervising Physicians
Physicians supervising APPs should, of course, make it a point to become familiar with and closely adhere to the relevant state and federal rules. In addition, there are some steps physicians can take to lower the risk associated with supervising APPs.
• Notify the relevant state board. To be crystal clear: the physician should notify the appropriate board of the intent to supervise an APP.
• Have a supervisory agreement or collaborative care plan. This agreement or plan should detail the working arrangements between the APP and the practice. The issues to be covered should include, but are not limited to, the following: lines of communication; methods of communicating with physicians; scope of practice; limitations of practice; locations of practice; and working environment. The agreement should be executed, signed, and dated by the primary supervising physician and the APP.
• Establish written protocols. These protocols should define the role of the APP in detail and should cover the main types of cases that the APP will see (for example, “always document neurovascular status on a pediatric supracondylar fracture before and after casting”). These protocols can further provide general clinical parameters, such as limiting the number of times a patient can see the APP without seeing the physician or specifying the types of injuries or symptoms that must be examined by a physician within 24 hours.
• Documentation of delegation with protocols. A physician must document any delegation of such authority to the APP through a protocol and must maintain permanent record of all protocols the physician has signed. This is especially important for PAs because the rules may require PAs to employ mechanisms that provide medical authority when such mechanisms are indicated—including, but not limited to, prescriptive authority agreements, standing delegation orders, standing medical orders, protocols, or practice guidelines.
• Be familiar with the APP’s work and promptly raise any concerns. While a physician expected to supervise APPs may or may not be directly involved in the hiring decisions, it is important to be aware of new people and to promptly raise any concerns about the conduct of and/or quality of care being provided by an APP. In addition, while the APP will ideally be of high caliber in care and reliability, the physician should regularly check the APP’s work habits. This can include inquiries of patients who have had visits with the APP to get feedback. Such intermittent checks can reassure the physician of the APP’s performance; ensure that the physician is aware of issues regarding the APP’s work; and help alert the physician to problems or issues that may lower patient satisfaction.
• Keep geographic and other limitations in mind. When making a decision on whether to supervise APPs or move to a new practice or position within a practice, keep the supervision requirements in mind. Physicians are sometimes called upon to supervise APPs at facilities some distance away from their homes or primary practice location, or to supervise at multiple facilities. The details of such arrangements should be worked out in advance so the physician is satisfied that he or she will be able to meet these supervisory obligations.
• Avoid patient confusion about a health care provider’s identity. Patients should always know if they are being seen by an APP or by the physician. To avoid confusion, name badges of APPs should clearly indicate “PA” or “APRN.” APPs should identify themselves by title, and use caution with uniforms (i.e. lab coats, scrubs, etc.) so that patients are not confused about which type of provider they are seeing. The physician who introduces the APP to the patient can clarify the roles of each provider and reassure the patient that he or she is in good hands.
• Avoid confusing documentation. Keeping accurate documentation is also important. For example, in many instances multiple providers provide input for or sign off on the same record, or an office visit may be primarily covered by an APP, with the physician stopping in for part of the visit. Providers should make an effort to document the specific provider completing each portion of the care in the record to avoid any confusion later.
• When hiring, confirm that the candidate has the certifications and training required to provide the level of care that the physician delegates. Insufficient training for the APP can lead to inadequate care. Physicians must both properly screen candidates, and, once APPs are hired, establish appropriate prescriptive authority agreements, delegation protocols, policies, and procedures for patient care, along with appropriate standing orders.
• Consider setting regular alerts to prompt checking the licensure of APPs. This is certainly recommended for any licensed staff, but it can be devastating if an APP’s license lapses, jeopardizing medical liability insurance coverage.
• Create a culture that encourages questions. A high level of collaboration between physicians and APPs is ideal when it comes to patient care. Further, lawsuits against APPs and their supervising physicians frequently cite the failure of an APP to contact the physician. Some APPs may fear reprisal for unnecessarily disturbing their supervising physician, but both individuals must understand the collaborative nature of the relationship and eliminate any trepidation.
An APP should always have reliable contact information for the supervising physician. In addition, the supervising physician should show respect for the education and professionalism of the APP, as well as take a role in the APP’s educational development. The physician should let APPs know that whenever they are in doubt, they should talk to the physician and that they will not be criticized or punished for asking too many questions.
As with any aspect of practice, providing optimal patient care is the ultimate goal. Having a good team of individuals, maintaining open lines of communication, and addressing challenges together are essential to the successful collaboration of physicians and APPs. Knowledge of and adherence to the various rules and regulations governing APPs build a good foundation for this relationship, ensure that patients receive quality care, and minimize potential risk for the physician.
Tanya Babitch is a director in the Texas Medical Liability Trust Risk Management Department.
Robin Desrocher is a director in the Texas Medical Liability Trust Risk Management Department.
This article is published by Texas Medical Liability Trust as an information and educational service. The information and opinions in this article should not be used or referred to as primary legal sources or construed as establishing medical standards of care for the purposes of litigation, including expert testimony. The standard of care is dependent upon the particular facts and circumstances of each individual case and no generalizations can be made that would apply to all cases. The information presented should be used as a resource, selected and adapted with the advice of your attorney. It is distributed with the understanding that neither Texas Medical Liability Trust nor its affiliates are engaged in rendering legal services. Copyright 2020 TMLT.
1. Quinley K. Physician extenders or liability expanders. Law Journal Newsletter. January 2018. Available at https://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2018/01/01/physician-extenders-or-liability-expanders/?slreturn=20200717092549. Accessed August 17, 2020.
2. Nursing Service Organization. Nurse practitioners and today’s professional liability risks. December 8, 2017. Available at https://minoritynurse.com/nurse-practitioners-todays-professional-liability-risks/. Accessed August 17, 2020.