Malpractice Risks to Consider as More Practices Utilize Advanced Practitioners

June 22, 2014

As use of care teams increases, physicians need to ensure their malpractice policies fully protect them.

One of the many emerging trends in healthcare today is the development of the healthcare team, typically consisting of a physician leader with nurses, physician assistants, or other “non-physician providers” or NPPs.

One important aspect of care teams just beginning to be explored is the implications they may have on physician malpractice liability.  The fundamental question physicians want answered is: “What effect will the mistakes of others have on my risk, rates, and even reputation?

These questions are important to all physicians - whether independent or employed by a group or large health system.  The so-called “vicarious liability” definition means that physicians can be held liable for actions of others.  Vicarious liability assigns responsibility to the person who has a legal relationship with the person who caused the damage. If you have an employed NPP or even hire that NPP as an independent contractor, you could be at risk for his actions.

It is critical to ensure your insurance coverage fully protects you and your practice. Here are some important areas to examine:

Carefully review your current policy.  If there are terms you aren’t sure of, or the language addressing NPPs is unclear (or missing) ask your broker or program manager to explain your risks and coverages. Specifically clarify what would happen if an NPP on your team were sued. 
You and your NPPs must have separate limits. Because NPPs are doing so much more now than even five years ago, you also need separate limits for each provider on the team so they are covered for their increased exposure.  It used to be that physicians would share their policy limit with the NPP.  However, most policies today have per-claim limits of $1 million. If you and an NPP on your team are both sued and you share limits, it can quickly erode.
Have clear guidelines and policies for your NPPs. One of the most common allegations plaintiff attorneys will lodge is “inappropriate supervision.”  Therefore, you should have clear policies and procedures for the roles and responsibilities of your NPPs.  Update and communicate those guidelines frequently and fully document those policies and implementation activities. 
Be sure you know your state’s supervisory requirements.  Some states have broader scope of practice rules than others.  Know your state’s rules on supervision and make sure your procedures match the rules.
Inform the state and your insurer of any changes to your supervising role.  If you hire more NPPs, both your insurer and the state (check state requirements) must be informed.  Remember if there is a claim, and you haven’t informed your carrier of a change in status, you may not be covered.

Even with all the right coverage and processes in place, the biggest challenge will be consistent communication and hand-offs.  Based on what we are seeing and hearing about new claims, clear protocols and procedures that ensure strong communication between everyone on the care team - including front-office staff - are critical.  Far too many medical errors today continue to be made because someone forgot to tell someone something critical.  Strong, consistently-implemented communication and patient flow protocols can help minimize oversight risk.  Make sure the procedures are reviewed periodically and communicated often to all staff. 

With the ongoing physician shortage and need to care for millions of new patients, care teams will continue to grow.   Take steps to protect yourself and your practice by ensuring everyone on the team has strong and sufficient coverage and by taking the steps needed to develop effective protocols and procedures.