Jayme T. Vaccaro, J.D. Director, Professional Liability Claims Sedgwick Claims Management Services, Inc. Jayme.Vaccaro@sedgwickcms.com www.sedgwick.com

1. Midlevel Operations:
Exploring New Exposures
with Allied Health Providers
Jayme T. Vaccaro
Sedgwick

2. Learning Objectives
 Identify professional liability risks unique
to Midlevels and their Supervising
Physicians
 Discuss Risk Reduction Techniques
 Review and take lessons from actual
malpractice cases involving Midlevels

3. The World of Midlevels
 Who are they?
• PA’s, Nurse Practitioners, Midwives, Nurse
Anesthetist, etc.
 6,723 PA’s, 8.1% of US 83,466
 15,766 NP’s, 9.4% of US 167,857
• (see statehealthfacts.org)
 What do they do?
• Walks, talks, acts…
• Lower Acuity Patients?
 Where do they practice?
• Everywhere!

4. Hot Topics for Midlevels
• Scope of Practice
• Supervisory Role of Physician
• Statutory Governance
• Tracking Midlevel Participation
• Credentialing
• Basic Professional Liability Considerations

5. Scope of Practice
 What is Scope of Practice and How is it Determined?
• Healthcare Providers
• State Law
• Hospital Credentialing
• Employment Contract
 Reasonableness
• Jury will use common sense
 Lower Acuity
• If you want to be a doctor, go to medical school
 Effective Triage
• Consulting or Referring to Physician

6. Case #1
Who did the Jury Believe?
Scope of Practice?

7. Case #1 - Scope of Practice
 45 Year Old Male seen by PA & ED Physician for c/o Headache
 Hx of sinus cancer
 CT ordered
 Radiologist Read Film = No Pathologies Present=Body of Report
discusses other possible findings
 At issue:
- did ED Physician & PA also read CT - PA says yes, MD says doesn’t
remember
- if ED Physician read CT was he the ―last chance‖ for this patient?
 Patient Discharged
 4 Days Later returns in semi-conscious state
 Craniotomy, Stroke due to Untreated Brain Infection

8. Case #1 - Scope of Practice
 ED Physician, PA, ED Group, Radiologist &
Hospital Sued
 PA dismissed on Statute of Limitations
 Radiologist: Defense Verdict (causation)
 ED Physician: $11M, Reduced to $6M
 Jury embraced PA’s testimony that ED Physician
read the CT and should have further acted
notwithstanding the initial radiology findings and
thereby could have further aided the patient

9. Case #1
 Witness Abilities
• Nexus between Physician and PA
 Does this lead to credibility?
• PA made better witness and was believed
• The PA defined the scope of practice of an ED
physician for the jury

10. Supervising Role of Physician
 Vicarious Liability
• What if Physician Disagrees with care?
 Communication
• Open Door Policy
• Physician too busy to review, oversee, interact with
midlevel
• Patient Volume
 Chart Sign Off
• Timing of sign off
• Did the Physician read the chart?
• Is the Physician required to sign the chart?

11. Case #2
Is Anyone Supervising?

12. Case #2 Supervisory Role of
Physician
 40 Year Old Male with brain tumor
 Both Neurosurgeon and ENT perform surgery
 ENT hits cribiform
 ENT takes 4 hours to do 45 minute approach
 Neurosurgeon suspects complication
 No Anesthesiologist, Nurse Anesthetist
 Nurse Anesthetist does not recognize significance of
complication
 Neurosurgeon takes over surgery
 Brain Damage to patient
 Sues ENT, Neurosurgeon, Anesthesiologist, Nurse
Anesthetist, Anesthesiology Group and Hospital

13. Case #2 Supervisory Role of
Physician
 Nurse Anesthesis not licensed
 Anesthesiologist supervising 8 Nurse
Anthesesis at a time during surgeries
 Anthesiolgist present at start of surgery
and did not return for the next 8 hours
 Nurse Anthesthesis missed warning signs
on monitors that patient was in distress
 Case settled by all defendants

14. Case #2 Supervisory Role of
Physician
 Anesthesiologist/Group Exposure
• Reality of Supervising
 Surgical Team Exposure
 Hospital Exposure
• Who Credentials?
• Reliance?

15. Statutory Requirements
 Awareness
• PA’s
• Nurse Mid Wives
 Compliance
 Effect on Cases and License

16. What do the Statutes say?
 Unique to each state & revised periodically
- State PA laws –CAPA or www.aapa.org
- NP & PA state licensing boards websites
Compliance
- Delegation of Services Agreements
- Protocols
- Schedule II drugs
- Chart documentation
- Sign offs
- EMTALA-Cross reference statutes
 Impact on Cases - Negligence Per Se- elements:
• There is a statute designed to protect a class of people (i.e. statutory scope of practice
requirement or supervision requirement)
• Plaintiff was a member of the class to be protected (i.e. general public)
• Plaintiff was injured due to a violation of the statute (fail to supervise, fail to stay within
scope of practice, etc.
• Standard of Care Breached, Left with causation

17. Case #3
Did Anyone Review the
Application?

18. Case Study #3
 50 Year Old Male
 PA takes Hx, Hired by the
ED Group
 Nausea, Headache,
Dizziness, Confusion &
Double Vision
 ―Pop‖ in Head
 Hx of Hypertension,
Diabetes, High
Cholesterol and Family Hx
of Stroke
 MD examines and orders
2 CT’s
 Dx Sinusitis
 Antibiotics RX
 Pt. Discharged Home

19. Case Study #3
 Next Morning
 Severe Headache,
Slurred Speech
 Patient returns to
Hospital ED and
transferred in the PM
to Different Facility
 2nd Hospital Dx Stroke
 Patient now suffering
major brain damage
and paralysis

20. Case Study #3
 Plaintiff’s alleged MD Missed Dx of
Impending Stroke—MRI instead of CT?
 2nd Visit Missed Dx of Stroke
 Delay in Transfer
 PA unlicensed, failed exams 4X—must
have taken poor history

21. Case #3
 Jury Verdict Award of $217M
 50% of verdict on MD and PA
 50% of verdict on MD Groups
 Punitive Damages of $100M due to
Unlicensed PA
 ED Group BK’d
 Hospital dismissed prior to trial

22. Case #3
 Tracking this case as a PA case
 Back to Basics: Licensing and Credentials
 When juries get mad, they get mad…

23. Basic PL Considerations
 Documentation
 Witness Abilities
 Communication/Relationships with other
Healthcare Providers
 Bedside Manner
 Medical Training and Knowledge

24. Case #4
The Basics of Pregnancy

25. Basic PL Considerations: Case 4
 35 year old female patient seen in ED for
abdominal pain
 Ultra Sound done, fetal demise (wet read)
 Patient told miscarried, follow-up with OB-GYN
 Patient seen 2 times by OB-GYN PA
 No repeat pregnancy test done
 Patient realizes she is still pregnant at 25 weeks
 Does not want Amnio
 Down Syndrome Baby
 Sues ED, Hospital, OB

26. Basis PL Considerations: Case 4
 Final Read on Ultra Sound shows viable
fetus
 Final Read not relayed to ED but sent to
OB’s office
 Standard of Care of OB-PA, retest to
confirm miscarriage and read Ultra Sound
 Case is settled by ED, Hospital and OB

27. Case #4
 Training and Knowledge
• The PA did not know to retest
• The PA did not think to review ED records
• The PA did not recognize on physical exam
that the patient was still pregnant
• The PA did not confer with their supervising
OB
• PA is held to the standard of an OB

28. Potpourri
Medicine, Statutes, Supervision
and Contracts

29. The Basics and Then Some:
Case # 5
 Triage Nurse:
 44 Year Old Male
 Fever
 Headache x four days
 Pain 10/10
 Temp @ exam 98.8
 BP 91/60
 Pulse 90
 Respiratory Rate 20
 Skin Warm, Dry, Awake &
Oriented x4
 No notation of skin rash
 PA:
 Fever, chills & body ache 4 to
5 days
 Mild congestion & cough
 No neck stiffness
 Lips, teeth & gums dry
 Tenderness L side of Neck
 Dx viral syndrome
 RX Vicodin
 Seek further care if symptoms
not better in 2 days or sooner

30. The Basics and More:
Case #5 Allegations
 Medical Issues:
• Pulse & Blood pressure: dehydration
• If dehydrated, labs? If labs, further testing which
would have led to proper dx?
• Proper dx, leading to antibiotics?
 Statutory Issues:
• MD/PA Contracts—Not in Order, negligence per se
• Rx Vicodin—Against Code, negligence per se
• Code Allowed Physician off site but electronically
available

31. The Basics and Then Some:
Case #5 Allegations
 Contract Issues:
• Hospital, Group and PA Contracts at Issue
• Hospital Contract did not allow PA to be
supervised by off site Physician
• Unilateral Indemnification Clause
• Financial Incentive
 Group and Hospital Used PA because financially
Beneficial

32. Putting It All Together
 Medical Knowledge
 Statutes
 Supervisory Role

33. Check-List for the Risk Manager
 Headcount
 Scope of Practice
 Supervision by Physicians
 Statutes
 Credentialing
 Contractual Issues

34. Thank you