Many advanced practice providers (APPs) don’t expect to be involved in medical-liability litigation. There’s good reason for this—relatively few medical-liability cases involve advance practice providers.
In a recent article for Medscape, healthcare attorney Carolyn Buppert, MSN, JD, notes that fewer than one percent of closed malpractice claims involve nurse practitioners. That may explain why getting sued can be surprising for APPs, says Andrea Hunter, PhD, a trial consultant specializing in medical defense with Seattle-based Mind Matters Jury Consulting. “They don’t encounter the reality of getting sued very often,” she says. “The world of medical litigation is often very foreign to them.”
Because most guidance and information for providers involved in a lawsuit is aimed at physicians, APPs can benefit from resources that are specific to their experiences in trial. “APPs tend to take patient care very seriously and personally, and that can have personal ramifications when they’re involved in a lawsuit,” notes Hunter. “All providers experience this, but with APPs it seems to be heightened.”
“It’s about practicing with the appropriate level of autonomy, and knowing when to seek assistance so you aren’t asked to do more than you should.”
BOB SESTERO, JD
EVANS, CRAVEN & LACKIE, P.S.
With more APPs caring for patients each year, the number of malpractice cases involving these clinicians will likely grow, says Bob Sestero, JD, a medical-malpractice attorney with Evans, Craven & Lackie, P.S., in Spokane. “APPs are in a tough position,” he says. “They can be asked to have the autonomy and responsibility of a licensed physician, which may leave them vulnerable when the inevitable bad outcome occurs.”
Hunter is quick to point out that there’s good news for APPs, however: juries tend to respect their professional expertise, and public perception is of their role in healthcare is positive. With the right reparation and support, these providers can fare well before, during, and after a trial.
KEY LIABILITY CONSIDERATIONS FOR ADVANCED PRACTICE PROVIDERS INCLUDE
Knowing when to seek input
In many medical lawsuits, a central question becomes, “When does the APP need to recognize the need for more input?” “Usually there are no policies or lists telling the APP when physician involvement is indicated,” Sestero notes, “so the decision then involves the ‘exercise of judgement,’ which tells a jury that a provider may not be negligent if he or she makes the wrong therapeutic or diagnostic choice as long as he or she followed the standard of care in getting to the pivotal choice. In one of our medical cases, the physician assistant acknowledged that his supervisor was in clinic, not more than 50 feet away, on the day of the patient’s presentation. The plaintiffs’ counsel very effectively pointed out the supervising physician could have looked at the patient in just a few minutes.”
In cases like this one, Sestero says, there is no downside to an APP asking for assistance from a supervising physician. “If there are questions on the differential diagnosis list, or if the treatment or intervention is a tough call, a decision to ask for review will provide an additional layer to their defense through the ‘exercise of judgment,’” he says.
Seeking support, education, and coaching prior to deposition
Many APPs are passionately focused on patient care, a quality that serves them well in their careers. But the qualities that make APPs compassionate, capable providers may not serve them as well in the courtroom, Hunter points out. “While APPs have significant clinical expertise, they can often benefit from learning how to effectively answer questions in a deposition,” she says. “APPs are often excellent communicators and want to explain themselves in a conflict, but their natural tendencies toward educating and explaining can work against them in litigation. In a deposition, APPs are not there to educate or explain. We work with providers, physicians and APPs alike, to help them better tell their truth in an adverse and anxiety-ridden setting.”
Balancing autonomy and growth in career planning
Early in a professional partnership, a supervising physician and an APP may check in frequently, giving the APP ample time to ask questions. Over time, this important two-way communication may become less frequent for several reasons.
In busy clinical settings where providers care for large patient panels under immense time pressure, supervising a highly capable APP may seem like a low priority. In these environments, APPs may be discouraged from seeking input from physicians, or fear that doing so will label them as less-competent providers. As caring, empathetic people, APPs may also opt to spend more time on patient care and end up deprioritizing their own need for mentorship and supervision. But inadequate communication increases the risk for the supervising physician and the APP, says Sestero. “It’s about practicing with the appropriate level of autonomy, and knowing when to seek assistance so you aren’t asked to do more than you should,” he says.
To create environments where APPs can thrive, Sestero emphasizes, organizations must work to build a culture where both new and seasoned APPs feel safe asking for input, supervision, and support. And APPs must set their own personal boundaries to ensure that they are not asked to exceed their own comfort level by caring for too many patients with inadequate supervision, particularly early in their careers. Instead, long-term career goals should be considered, incorporating a plan to gradually increase independence and autonomy as needed.
Looking for employers who offer training and support for APPs
Healthcare’s growing demand for APPs means that many of them will have plenty of employment opportunities. When evaluating potential employers, APPs should consider each organization’s formal process for training and supervising APPs, as these can become critical factors if and when a medical-liability lawsuit arises.
When plaintiffs can point out shortcomings in APP mentoring, training, and monitoring, a medical defense is weakened, Sestero notes—and this is true even when physician supervision is deemed adequate. “In one of my cases, a patient seen by a physician assistant rapidly deteriorated after the clinic visit, and there was no merit to the claim that the supervising physician failed to properly oversee and monitor the PA relative to the plaintiff/patient,” he recalls. “But the plaintiffs’ counsel effectively attacked the medical group’s failure to maintain a ‘process for monitoring.’”
Requesting consistent oversight protocols over time
In busy clinical settings, APPs may be required to care for growing patient panels with varying degrees of supervision. Indeed, supervisory requirements for different APPs vary by license and by state, creating more confusion around the requirements for physician supervision for each advanced practitioner. As a physician gains confidence and trust in an advanced practice provider, regular check-ins might happen with less frequency and urgency.
When APPs find themselves with less contact and access to their supervising physician over time, clarification about protocol is in order, says Sestero. “While no physician wants to be contacted by an APP with every medical question that arises, it benefits the APP to recognize when there is a need for additional input. A medical-liability case involving an APP will nearly always contemplate a supervising physician’s responsibilities relative to the APP, though the APP’s responsibilities involve following the standard of care in their respective area of practice. It’s a tenuous balance between an APP’s confidence in their own diagnostic and treatment abilities and their obligation to seek timely input. When in doubt, ask.”
Sources: Bob Sestero, medical-malpractice attorney, Evans, Craven & Lackie, P.S. (Spokane, Washington) Andrea Hunter, PhD, senior consultant and partner, Mind Matters Jury Consulting (based in Seattle, Washington)