Physician assistants and your risk of malpractice

October 10, 2011

Claims and suits against physician assistants and their supervising physicians are rare, and the outcomes are usually favorable for the defense.

The nature of a dependent practice unites PAs and physicians not only in individual patient care but also in any litigation that may develop as a result. The legal principle of agency is the basis of the PA-doctor relationship and underlies most states' statutes governing PA practice. Generally, agency law holds a supervising physician liable: 1) for his or her own negligent acts (direct liability); or 2) for the negligent acts of a subordinate PA (vicarious liability).4

Negligence claims are generally required to have four basic elements:

In practice, both direct and vicarious liability may be alleged in a single case.

DIRECT LIABILITY

A PA acts with authority if the supervising doctor approves his or her conduct. In such cases, if the PA breaches his or her duty to the patient, the physician may be held directly liable. The doctor also may be held directly liable if he or she is negligent in selecting, supervising, or otherwise controlling the PA.

Negligent selection is a type of direct liability claim in which the physician can be liable for hiring a PA if the doctor knew or should have known the PA had some dangerous propensity. Here, the plaintiff must prove that the act of hiring the PA proximately caused injury and that the physician would have discovered the PA's propensities with reasonable diligence.

Negligent supervision is another type of direct liability claim; the acts of the doctor (and not necessarily those of the PA) are at issue. State statutes codify supervision requirements and, by extension, what constitutes negligent supervision. Statutes vary by state, but most address issues related to physician presence, acceptable PA-doctor ratios, and chart review obligations.5

Dynamic elements of PA practice such as clinical setting, level of experience, and employment duration may affect these requirements. Additionally, some states differentiate between primary and secondary supervisory relationships, adding to the complexity of what constitutes diligent supervision.