Effective Use of Physician Assistants

There is no doubt that many practitioners regard the use of Physician Assistants (P.A.s) as an important, and even necessary, adjunct to their practices. P.A.s are able to handle common patient complaints, follow-up visits, and patient counseling and education. P.A.s complement the physician and extend his or her reach, allowing more flexible scheduling for the convenience of patients, often providing more immediate care, much to the satisfaction of the patients who generally want to be seen “today.” Physicians can then focus on complicated patient problems and allow appropriate time for patient care.

But the use of P.A.s presents a number of medico-legal issues for the practice that must be considered, both by medical practitioners and their legal counsel. Failure to do so could result in increased liability exposure for the physician and the practice.

Supervision Required

First and foremost, the P.A. is not a replacement for the physician, no matter how well trained and experienced he or she is. The physician must define the role of the P.A. within the practice, and the P.A. must consult with and seek input from the physician whenever there are medical questions that exceed the P.A.'s expertise, or when physician involvement is necessary for care. And the P.A.s examinations and treatment plans require scrupulous evaluation and appraisal by the physician.

Every state has legislation in place requiring P.A.s to practice with physician supervision. The majority of state laws governing the use of P.A.s contain definitions identical or similar to the American Academy of Physician Assistants' (AAPA) model language on supervision, which defines supervision as “overseeing the activities of and accepting responsibility for, the medical services rendered by a physician assistant.” American Academy of Physician Assistants (2009) Model State Legislation for Physician Assistants. Retrieved Sept. 25, 2011, from www.saaapa.aapa.org/advocacy-and-practice-resources/state-advocacy/490-model-state-legislation#Model%20State%20Leglislation. According to the AAPA's Guidelines for State Regulation of Physician Assistants, “[t]he guiding principles of supervision must be that it (a) protects the public health and safety, and (b) preserves the physician assistant's access to physician consultation when indicated.” American Academy of Physician Assistants (2009) Guidelines for State Regulation of Physician Assistants. Retrieved Sept. 25, 2011, from www.saaapa.aapa.org/images/stories/documents/about_aapa/policymanual/05-GuideforStateRegs.pdf. This language indicates that direct personal supervision is not mandated, so the physician need not be physically present while services are rendered by the P.A. However, a physician should always be available for consultation with the P.A. while the patient is still in the office in the event more information or a more thorough examination is needed.

In the States

While most states have adopted language similar to the model rules, the scope of supervision required continues to differ by state. For example, in New York, the statute governing supervision of P.A.s merely instructs that supervision must be continuous, but it does not require the physical presence of the supervising physician at the time or place where services are performed. N.Y. Educ. Law ' 6542 (McKinney). It also mandates that no physician may employ or supervise more than two P.A.s and two specialist assistants in his or her private practice at any given time. However, a physician's countersignature is not required on P.A. chart entries. N.Y. Pub. Health Law ' 3703 (McKinney). By contrast, Connecticut's statute is much more specific in defining what constitutes adequate supervision of P.A.s in settings other than hospitals. It explains that the supervising physician is responsible for the oversight, control, and direction of the P.A.'s services through, inter alia: 1) continuous availability of direct communication either in person or by radio, telephone or telecommunications between the P.A. and supervising physician; 2) active overview of the P.A.'s activities; 3) personal review of the P.A.'s practice through face-to-face meetings with the P.A., at least weekly (or more frequently, if necessary, to ensure quality patient care); 4) regular chart review, with documentation of review to be kept at the practice site; 5) delineation of a plan for emergencies; and 6) designation of an alternate physician who is registered with the department in absence of supervisor. Conn. Gen. Stat. Ann. ' 20-12a (West). The State of Connecticut allows a physician to supervise as many as six P.A.s, and requires physicians to countersign orders for Schedule II or III drugs within 24 hours. Conn. Gen. Stat. Ann. ” 20-12c and 20-12d (West). Connecticut also requires P.A.s to be “clearly identified by appropriate identification as a physician assistant to ensure that the physician assistant is not mistaken for a physician.” Conn. Gen. Stat. Ann. ' 20-12d (West).

Obviously, it is important for the physician to be cognizant of the differences in states laws pertaining to P.A.s when establishing protocols for the practice, particularly if the physician practices in multiple states.

Setting Up a System

The AAPA Model State Legislation for Physician Assistants states: “It is the obligation of each team of physician(s) and physician assistant(s) to ensure that the physician assistant's scope of practice is identified; that delegation of medical tasks is appropriate to the physician assistant's level of competence; that the relationship of, and access to, the supervising physician is defined; and that a process for evaluation of the physician assistant's performance is established.” American Academy of Physician Assistants (2009) Model State Legislation for Physician Assistants. Retrieved Sept. 25, 2011, from www.saaapa.aapa.org/advocacy-and-practice-resources/state-advocacy/490-model-state-legislation#Model%20State%20Legislation.

The American Medical Association (AMA) has also recognized the importance of establishing a clear working relationship between the physician and P.A. It has adopted its own guidelines for P.A. practice, which provide that:

• Health care services delivered by physicians and P.A.s must be within the scope of each practitioner's authorized practice, as defined by state law;
• The physician is responsible for the supervision of the P.A. in all settings;
• The responsibilities of the P.A. should be defined through guidelines developed by the physician;
• The physician must be available for consultation with the P.A.;
• The extent of the P.A.'s involvement will depend on the complexity of the patient's condition and the training and experience of the P.A., as judged by the physician;
• Patients should always be made aware they are receiving care from a P.A.; and
• The physician is responsible for managing the health care of patients in all settings.

American Medical Association (2009) Physician Assistants and Nurse Practitioners. (policy H-160-947) Retrieved Sept. 25, 2011 from www.ama-assn.org/ad-com/polfind/Hlth-Ethics.pdf

As a preliminary matter, therefore, consistent procedures must be established within the practice for the utilization of the P.A.'s services. This should include implementing a protocol governing not only the circumstances under which the patient is initially scheduled to see a P.A., but also the circumstances under which a patient may continue under the care of the P.A. The scope of the practice, including limitations on what the P.A. may do, should be determined and acceptable methods for communicating with supervising physicians should be clearly defined. And a procedure must be developed regarding the scope of physician review of the P.A.'s observations, diagnoses and treatment plans (merely counter-signing the P.A.'s note is not sufficient).

Once all of these issues have been addressed and the resulting protocols have been reduced to writing, both the physician and the PA should sign them to attest to their having read and understood them.

Limiting Legal Problems: A Few Tips

Physicians should monitor P.A.s to ensure they are not working beyond their skill level or beyond their legal allowance. It is also imperative that the practice create an environment that encourages P.A.s to consult with their supervising physicians whenever they have any questions. Many lawsuits against P.A.s and their supervising physicians cite the failure of the P.A. to contact the physician. The P.A. may fear reprisal for unnecessarily disturbing his or her supervising physician; therefore, it is important that both the supervising physician and the P.A. eliminate any apprehension, so that the P.A. is comfortable bringing all medically necessary questions to the attention of the physician.

Failure to provide patients with sufficient information regarding the practice's use of a P.A.'s services may result in misunderstandings, and even lawsuits, from patients who claim they never knew that “Dr. Jones” was a P.A. and not “a real doctor.” The security of having provided a written protocol to the patient will go a long way in defending any such claims. The staff should be instructed to note that the patient was offered options, provided a written protocol, and chose to be seen by the P.A. (or to wait to see a physician). Documentation in the medical chart indicating that the protocol was, in fact, provided to the patient (as well as noting when it was provided and that there was a discussion relating to the issue) will assist in the defense of a lawsuit even years later. By then, office personnel may have departed, and the physician will be unable to attest to what information the patient was provided at the time of the visit.

P.A.s generally carry their own malpractice insurance. Once a lawsuit is brought, the P.A. may therefore be represented by an attorney whose sole consideration is the welfare of the P.A. The P.A.'s defense will likely focus on the fact that he or she was a dependent practitioner and that the supervising physician was responsible for “approving” the diagnosis or the treatment plan. Thus, a physician who co-signs a P.A. note without thorough review is inviting personal responsibility for the actions of the P.A. In Polanco v. Commissioner of the Dep't of Social Servs., 212 A.D.2d 443 (1st Dept. 1995), the court held that a physician was responsible for the services provided by his P.A., where the P.A. “wrote the orders for the subject prescriptions and laboratory tests, all billing was processed under petitioner's name and Medicaid Provider number, and he reviewed the medical charts upon which the orders were based. Inasmuch as petitioner chose to employ an assistant, he was responsible for the assistant's work.” In Cox v. M.A. Primary and Urgent Care Clinic, 313 S.W.3d 240 (Tenn. 2010), the court held that the physician stood in an agency relationship because the physician acted as the P.A.'s supervisor and the P.A. had acted within the scope of the agency. Thus, the physician could be held vicariously liable for the P.A.'s negligence, if proven. As a general matter, the Cox court stated, a P.A. stands in an agency relationship with his or her supervising physician when the P.A. is providing authorized medical services within the scope of the parties' joint protocol.

Conclusion

There is no doubt that Physician Assistants are a useful adjunct to patient care, both from the physician's viewpoint and from the patient's. Promulgating and adhering to written protocols for their employment will help maximize their effectiveness within the office, as well as minimize misunderstandings by the patients, thereby mitigating legal consequences to the physician.

Barry B. Cepelewicz, M.D., a member of this newsletter's Board of Editors, is an attorney in the Health Care Group at Meiselman, Denlea, Packman, Carton & Eberz P.C. Richard J. Nealon practices in the firm's Litigation Department. They can be reached at 914-517-5000. E-mail: [email protected], or [email protected].

There is no doubt that many practitioners regard the use of Physician Assistants (P.A.s) as an important, and even necessary, adjunct to their practices. P.A.s are able to handle common patient complaints, follow-up visits, and patient counseling and education. P.A.s complement the physician and extend his or her reach, allowing more flexible scheduling for the convenience of patients, often providing more immediate care, much to the satisfaction of the patients who generally want to be seen “today.” Physicians can then focus on complicated patient problems and allow appropriate time for patient care.

But the use of P.A.s presents a number of medico-legal issues for the practice that must be considered, both by medical practitioners and their legal counsel. Failure to do so could result in increased liability exposure for the physician and the practice.

Supervision Required

First and foremost, the P.A. is not a replacement for the physician, no matter how well trained and experienced he or she is. The physician must define the role of the P.A. within the practice, and the P.A. must consult with and seek input from the physician whenever there are medical questions that exceed the P.A.'s expertise, or when physician involvement is necessary for care. And the P.A.s examinations and treatment plans require scrupulous evaluation and appraisal by the physician.

Every state has legislation in place requiring P.A.s to practice with physician supervision. The majority of state laws governing the use of P.A.s contain definitions identical or similar to the American Academy of Physician Assistants' (AAPA) model language on supervision, which defines supervision as “overseeing the activities of and accepting responsibility for, the medical services rendered by a physician assistant.” American Academy of Physician Assistants (2009) Model State Legislation for Physician Assistants. Retrieved Sept. 25, 2011, from www.saaapa.aapa.org/advocacy-and-practice-resources/state-advocacy/490-model-state-legislation#Model%20State%20Leglislation. According to the AAPA's Guidelines for State Regulation of Physician Assistants, “[t]he guiding principles of supervision must be that it (a) protects the public health and safety, and (b) preserves the physician assistant's access to physician consultation when indicated.” American Academy of Physician Assistants (2009) Guidelines for State Regulation of Physician Assistants. Retrieved Sept. 25, 2011, from www.saaapa.aapa.org/images/stories/documents/about_aapa/policymanual/05-GuideforStateRegs.pdf. This language indicates that direct personal supervision is not mandated, so the physician need not be physically present while services are rendered by the P.A. However, a physician should always be available for consultation with the P.A. while the patient is still in the office in the event more information or a more thorough examination is needed.

In the States

While most states have adopted language similar to the model rules, the scope of supervision required continues to differ by state. For example, in New York, the statute governing supervision of P.A.s merely instructs that supervision must be continuous, but it does not require the physical presence of the supervising physician at the time or place where services are performed. N.Y. Educ. Law ' 6542 (McKinney). It also mandates that no physician may employ or supervise more than two P.A.s and two specialist assistants in his or her private practice at any given time. However, a physician's countersignature is not required on P.A. chart entries. N.Y. Pub. Health Law ' 3703 (McKinney). By contrast, Connecticut's statute is much more specific in defining what constitutes adequate supervision of P.A.s in settings other than hospitals. It explains that the supervising physician is responsible for the oversight, control, and direction of the P.A.'s services through, inter alia: 1) continuous availability of direct communication either in person or by radio, telephone or telecommunications between the P.A. and supervising physician; 2) active overview of the P.A.'s activities; 3) personal review of the P.A.'s practice through face-to-face meetings with the P.A., at least weekly (or more frequently, if necessary, to ensure quality patient care); 4) regular chart review, with documentation of review to be kept at the practice site; 5) delineation of a plan for emergencies; and 6) designation of an alternate physician who is registered with the department in absence of supervisor. Conn. Gen. Stat. Ann. ' 20-12a (West). The State of Connecticut allows a physician to supervise as many as six P.A.s, and requires physicians to countersign orders for Schedule II or III drugs within 24 hours. Conn. Gen. Stat. Ann. ” 20-12c and 20-12d (West). Connecticut also requires P.A.s to be “clearly identified by appropriate identification as a physician assistant to ensure that the physician assistant is not mistaken for a physician.” Conn. Gen. Stat. Ann. ' 20-12d (West).

Obviously, it is important for the physician to be cognizant of the differences in states laws pertaining to P.A.s when establishing protocols for the practice, particularly if the physician practices in multiple states.

Setting Up a System

The AAPA Model State Legislation for Physician Assistants states: “It is the obligation of each team of physician(s) and physician assistant(s) to ensure that the physician assistant's scope of practice is identified; that delegation of medical tasks is appropriate to the physician assistant's level of competence; that the relationship of, and access to, the supervising physician is defined; and that a process for evaluation of the physician assistant's performance is established.” American Academy of Physician Assistants (2009) Model State Legislation for Physician Assistants. Retrieved Sept. 25, 2011, from www.saaapa.aapa.org/advocacy-and-practice-resources/state-advocacy/490-model-state-legislation#Model%20State%20Legislation.

The American Medical Association (AMA) has also recognized the importance of establishing a clear working relationship between the physician and P.A. It has adopted its own guidelines for P.A. practice, which provide that:

• Health care services delivered by physicians and P.A.s must be within the scope of each practitioner's authorized practice, as defined by state law;
• The physician is responsible for the supervision of the P.A. in all settings;
• The responsibilities of the P.A. should be defined through guidelines developed by the physician;
• The physician must be available for consultation with the P.A.;
• The extent of the P.A.'s involvement will depend on the complexity of the patient's condition and the training and experience of the P.A., as judged by the physician;
• Patients should always be made aware they are receiving care from a P.A.; and
• The physician is responsible for managing the health care of patients in all settings.

American Medical Association (2009) Physician Assistants and Nurse Practitioners. (policy H-160-947) Retrieved Sept. 25, 2011 from www.ama-assn.org/ad-com/polfind/Hlth-Ethics.pdf

As a preliminary matter, therefore, consistent procedures must be established within the practice for the utilization of the P.A.'s services. This should include implementing a protocol governing not only the circumstances under which the patient is initially scheduled to see a P.A., but also the circumstances under which a patient may continue under the care of the P.A. The scope of the practice, including limitations on what the P.A. may do, should be determined and acceptable methods for communicating with supervising physicians should be clearly defined. And a procedure must be developed regarding the scope of physician review of the P.A.'s observations, diagnoses and treatment plans (merely counter-signing the P.A.'s note is not sufficient).

Once all of these issues have been addressed and the resulting protocols have been reduced to writing, both the physician and the PA should sign them to attest to their having read and understood them.

Limiting Legal Problems: A Few Tips

Physicians should monitor P.A.s to ensure they are not working beyond their skill level or beyond their legal allowance. It is also imperative that the practice create an environment that encourages P.A.s to consult with their supervising physicians whenever they have any questions. Many lawsuits against P.A.s and their supervising physicians cite the failure of the P.A. to contact the physician. The P.A. may fear reprisal for unnecessarily disturbing his or her supervising physician; therefore, it is important that both the supervising physician and the P.A. eliminate any apprehension, so that the P.A. is comfortable bringing all medically necessary questions to the attention of the physician.

Failure to provide patients with sufficient information regarding the practice's use of a P.A.'s services may result in misunderstandings, and even lawsuits, from patients who claim they never knew that “Dr. Jones” was a P.A. and not “a real doctor.” The security of having provided a written protocol to the patient will go a long way in defending any such claims. The staff should be instructed to note that the patient was offered options, provided a written protocol, and chose to be seen by the P.A. (or to wait to see a physician). Documentation in the medical chart indicating that the protocol was, in fact, provided to the patient (as well as noting when it was provided and that there was a discussion relating to the issue) will assist in the defense of a lawsuit even years later. By then, office personnel may have departed, and the physician will be unable to attest to what information the patient was provided at the time of the visit.

P.A.s generally carry their own malpractice insurance. Once a lawsuit is brought, the P.A. may therefore be represented by an attorney whose sole consideration is the welfare of the P.A. The P.A.'s defense will likely focus on the fact that he or she was a dependent practitioner and that the supervising physician was responsible for “approving” the diagnosis or the treatment plan. Thus, a physician who co-signs a P.A. note without thorough review is inviting personal responsibility for the actions of the P.A. In Polanco v. Commissioner of the Dep't of Social Servs. , 212 A.D.2d 443 (1st Dept. 1995), the court held that a physician was responsible for the services provided by his P.A., where the P.A. “wrote the orders for the subject prescriptions and laboratory tests, all billing was processed under petitioner's name and Medicaid Provider number, and he reviewed the medical charts upon which the orders were based. Inasmuch as petitioner chose to employ an assistant, he was responsible for the assistant's work.” In Cox v. M.A. Primary and Urgent Care Clinic , 313 S.W.3d 240 (Tenn. 2010), the court held that the physician stood in an agency relationship because the physician acted as the P.A.'s supervisor and the P.A. had acted within the scope of the agency. Thus, the physician could be held vicariously liable for the P.A.'s negligence, if proven. As a general matter, the Cox court stated, a P.A. stands in an agency relationship with his or her supervising physician when the P.A. is providing authorized medical services within the scope of the parties' joint protocol.

Conclusion

There is no doubt that Physician Assistants are a useful adjunct to patient care, both from the physician's viewpoint and from the patient's. Promulgating and adhering to written protocols for their employment will help maximize their effectiveness within the office, as well as minimize misunderstandings by the patients, thereby mitigating legal consequences to the physician.

Barry B. Cepelewicz, M.D., a member of this newsletter's Board of Editors, is an attorney in the Health Care Group at Meiselman, Denlea, Packman, Carton & Eberz P.C. Richard J. Nealon practices in the firm's Litigation Department. They can be reached at 914-517-5000. E-mail: [email protected], or [email protected].