When is a physician liable for nurse practitioner malpractice?

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Consider this case from Illinois:

A woman who had received prenatal care from a nurse practitioner (NP) at a city health clinic gave birth to a child with macrosomia. During delivery, the child sustained a brachial plexus injury, right arm palsy and clawed right hand. Macrosomia and associated birth trauma are related to maternal hyperglycemia.

The mother sued the clinic, the clinic's doctor, and the clinic's nurse practitioner, claiming the doctor had never examined her or treated her gestational diabetes and the nurse practitioner had incorrectly advised her that high blood sugar could be ruled out because the patient had a normal urinalysis. (The standard of care for ruling out maternal hyperglycemia is a glucose challenge test followed up with a glucose tolerance test.)

The defendant doctor denied being involved with the mother's care. He said he became involved in the nurse practitioner's patients' care only when the nurse practitioner notified him of a problem, which the nurse practitioner had not done.

The mother's attorney argued that the defendant doctor was involved with the patient's care in that the doctor had used his provider number to bill Medicaid, had initialed lab slips, had allowed the nurse practitioner to use his name on prescriptions and had made arrangements to deliver the baby.

The court agreed with the defendant doctor, and he was found not liable in this case. The nurse practitioner settled before the trial for $500,000. The clinic agreed to make payments to the mother. Source: Robinson v. Thomas et al., www.nso.com, and Medical Malpractice Verdicts, Settlements & Experts; Lewis Laska, Editor, 1-800-298-6288.

Now consider this case from North Carolina:

A 36-year-old pregnant patient received prenatal care at a women's health center from a NP and a MD. On the first prenatal visit, the woman told the NP she would like an amniocentesis. The NP explained that it was a very dangerous procedure and did not refer the woman to anyone to talk about amniocentesis.

Later in her pregnancy, the woman was examined by a MD at the center. The patient again introduced the subject of amniocentesis. The MD asked why she was worried, as 37 years of age was the age where one becomes concerned about Down's Syndrome. The MD dropped the matter and so did the patient.

After the baby was born, and it was discovered that the baby had Down's Syndrome, a geneticist took the mother aside and asked whether she had heard of amniocentesis. She said she had discussed it with the physician and he had said it was unnecessary.

The patient sued the NP and MD at the women's center, claiming they had failed to properly advise the patient with respect to amniocentesis and genetic counseling. The patient claimed that if she had been properly advised she would have had an amniocentesis, it would have revealed that the fetus had Down's Syndrome, and she would have terminated the pregnancy.

Eventually, liability was assigned to the MD. An appeals held that the MD had breached the standard of care--that at 36-37 years of age, an amniocentesis was indicated if the patient had a high level of concern. The NP was not held liable, because the patient testified at trial that after her conversation with the NP, she still was determined to get the amniocentesis, and that the conversation with the NP did not affect her decision to go for amniocentesis. Source: Azzolino v. Dingfelder, 71 N.C. App. 289, 322 S.E. 2d 567 (1984)

Difference between the facts of these cases as applied to elements of negligence

In order to prove malpractice, a patient must prove four elements of negligence:

  • Duty -- the clinician has a duty to perform certain acts or interactions after the presumption of a relationship between patient and provider
  • Breach of the standard of care
  • Injury to the patient
  • Causal relationship between the patient's injury and the provider's negligence.

The difference in outcome of these two cases is attributable to the first element -- duty.

In the first case, the NP was the patient's provider and the mother never presumed that the MD was the provider, until the mother's attorney started looking for evidence that would connect the MD with the patient's care. The trial court did not find that using his provider number to bill Medicaid, initialing lab slips, allowing the NP to use his name on prescriptions and making arrangements to deliver the baby established the MD as a provider and triggered a duty to provide a standard of care to the patient.

In the second case, the MD conducted his own evaluation and management of the patient, in addition to and separate from the NP's contact with the patient. The NP in the second case most likely would have been found liable, had the patient not testified that her decision to pursue amniocentesis was unaffected by the NP's failure to refer for the test.

Implications for NPs and their collaborating physicians

Forty-two states require some form of collaboration, supervision or delegation from a physician for an NP to practice. Generally, the malpractice liability and insurance premium of an MD does not increase because the MD has a collaborative relationship with an NP. Actuarial data has shown that the incidence of lawsuits against NPs is lower than the incidence of lawsuits against MDs. Presumably, insurers base premiums on actuarial data, but there is no legal requirement that they do so. Insurers have a wide berth to set whatever premiums they want. So, it probably will not (but may) cost an MD an additional premium to collaborate with a NP. And, an MD’s risk in collaborating with an NP is manageable.

For the purposes of risk management, NP/MD teams may wish to consider the following policies:

  1. An MD need not co-sign an NP's note (and is better off not co-signing). Co-signatures provide no value to either NP or MD. Object to any third-party payer whose policy requires a co-signature.
  2. If an MD meets with an NP's patient, the MD should assume that he or she is establishing a duty of care to that patient. If, after an NP orally presents a case, an MD recommends a test or treatment, it is not clear that the MD has established a legal duty to the patient, if the MD has never met or talked with the patient. It is arguable that the MD does have a duty to the patient, but there are no recent cases in which an MD was held liable for an NP's mistake when the MD's only connection to the patient was an oral presentation from an NP. Likewise, there are no cases in which an MD has been held liable when the NP never consulted the MD, even though the MD was the NP's "collaborator," for purposes of meeting state law requirements. Of course, anyone can file a lawsuit against anyone.
  3. Collaborative arrangements between NPs and MDs are handled most safely if the NP follows the traditional procedures for obtaining consultation or referral. For example, if the NP in the IL case summarized above was unfamiliar with the standard of care for ruling out gestational diabetes, the NP should have referred the patient to the clinic's obstetrician, who then would have clear responsibility for managing the patient's care.

Copyright 2006, Carolyn Buppert
This article is taken from The Green Sheet, published monthly from the Law Office of Carolyn Buppert. To order, click here. For more detail on avoiding malpractice, see "Avoiding Malpractice: 20 cases, 10 rules, 5 systems." To order, click here.


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