“What Will Happen to ME?” – LEGAL and Medical Risks of Nonphysician Practitioner (NPP) Care
An elderly relative was seen by a nonphysician practitioner for the new onset of chest pain and was sent home with an antacid and a referral to see the cardiologist a month in the future.
No testing was done for a possible heart attack: no EKG, no lab studies, no chest x-ray. When the family found out about this deviation from medical standards of care and lodged a complaint, they learned that patients MAY have a hard time holding some “providers” responsible for mismanagement. Who are these clinicians and what can be done by families to protect themselves?
Legislation over the past two decades has allowed non-physician practitioners (NPPs) to independently diagnose patients and make decisions about treatment, without physician supervision. HOWEVER, consumer protection laws have not kept up with this trend, leaving uninformed, injured patients, families at risk for non-compensation, and incompetent clinicians undisciplined, un-remediated, and free to continue with unsafe practices.
All patients need to know these two things:
NPPs may be held to nursing (not physician) standards of care in a court of law.* Patients may have higher legal, financial, and medical risks when choosing a NPP for their care.*Sources and case examples below. NPPs may carry their own malpractice insurance and they may be sued. The problem is that a lawsuit against NPP MAY BE MORE DIFFICULT for injured patients to win because of the current legal loopholes. NPPs are de facto practicing medicine, that is, independently examining, diagnosing, and treating patients. But in a court of law, they are practicing “healthcare” and may only be held to nursing (not medical) standards of care.
Because of relatively abbreviated training and loose supervision laws, NPPs prescribe, test, and refer inappropriately more than physicians, risking delays in proper diagnosis & treatment. (a) Patients may bear all risks of this inappropriate care. The medical-industrial complex has significant financial incentives to hire lesser trained, less costly staff who then increase billing with inappropriate testing and referrals. (n)
What can patients and families do?
Write Congress to expand residency training spots so that more physicians are available for your care. Demand laws requiring medical conglomerates, especially private equity corporations, to provide patients with transparency and explicit informed consent regarding NPP care. Demand equal legal accountability from unsupervised NPP. Demand rigorous and real supervision laws (not mere rubber-stamping) for supervised NPP.
Consider a Medical Directive in your chart specifying who may lead your care. (See Patients at Risk for example).
Gain awareness of the legal accountability differences between the different types of clinicians and hire an attorney well-versed in the variances in malpractice standards and legal loopholes if you or a family member is injured.
Support for the above argument: Case examples and reports.
Simonson v. Keppard (2007)Physician not permitted to testify regarding the standard of care for a nurse practitioner who failed to diagnose a cerebral hemorrhage. “Even when making a diagnosis, an advanced practice nurse remains accountable for advanced practice nursing care not a physician’s care.”
Lattimore v. Dickey (2015) “a nurse’s conduct must not be measured by the standard of care required of a physician or surgeon, but by that of other nurses in the same or similar locality and under similar circumstances.”
Ochoa v Mercy (2019) NP graduate from online degree program working alone in ER failed to diagnose PE. NP dropped from lawsuit & went on to work in emergency services in another state. Q: “So, except for two weeks, your entire master’s program in nursing was online?’ A: “Yes.” Q: “There were no attending physicians in the ER were there?” A: “No.”
Connette v Charlotte (2020) CRNA case not successful because: “Nearly a century ago, our Supreme Court rejected the notion that nurses can be liable for medical malpractice based on their diagnosis and treatment of patients. The Court reasoned that nurses “are not supposed to be experts in the technique of diagnosis or the mechanics of treatment.”
Judicial Council of California Civil Jury Instructions (2020) “The jury should not be instructed that standard of care for a nurse practitioner must be measured by the standard of care of a physician or surgeon when the nurse is examining a patient or making a diagnosis…Courts have observed that nurses are trained ‘but to a lesser degree than a physician in the recognition of the symptoms of diseases and injuries’…”
Kennedy v Gander (2021) “Physician assistant not considered provider under state law.” “A physician’s assistant employed by an urgent care clinic in the Wisconsin Dells dodged a medical malpractice claim after a state appeals court found that Wisconsin law bars lawsuits solely against non-medical providers…”
Father of seven-year-old girl who died hours after NP failed to diagnose sepsis, testifies in Texas Legislature of difficulty finding an attorney to bring the case to court because of legal loopholes.
Malpractice attorney & former hospital administrator: “After informed consent is complete, it’s a bait and switch, a passing of the baton from the doctor to a CRNA, who will manage essentially all of the remainder of the patient’s anesthesia care.”
From Bloomberg: “private-equity-owned medical practices buy cheaper, and sometimes substandard, medical supplies and hire providers who aren’t as well trained as doctors, such as nurse practitioners and physician assistants, to do work that would traditionally have been performed by an M.D. When all this results in substandard care, the arbitration agreements are in place to limit liability.”