Is A Collaborating Physician Responsible For A Nurse Practitioner’s Mistake?
Under most circumstances “no” is likely the current answer in Virginia, as in most states, but a concerning recent opinion from Indiana’s highest court provides a new precedent for those who argue that a physician should be liable for injuries to his nurse practitioner’s patients. Specifically, the Indiana Court of Appeals ruled that a physician who entered into an agreement with a nurse practitioner to oversee prescriptive services owed a duty of care to that nurse practitioner’s patient—even though the physician never saw the patient.
In John Collip, M.D. v. Vickie Ratts on behalf of Robert A.J. Ratts, deceased, and Little Creek Family Health Center, LLP, John Collip, M.D. and Dena Barger, N.P. entered into a collaborative practice agreement whereby Barger was to practice under the supervision and direction of Collip. The agreement provided that Collip would review at least 5% of Barger’s charts on a weekly basis and document Barger’s prescribing practices. Admittedly, Collip did not adhere to this requirement and engaged in only a limited review of Barger’s notes. However, his cursory review of Barger’s notes did reveal concerns for her prescribing practices in which he suggested she attend a narcotic-prescribing seminar.
One of Barger’s high-risk patients had a history of depression, suicide attempts, and polysubstance abuse. This patient was prescribed Lortab, methadone, Wellbutrin, lithium, and Xanax. The patient died on March 30, 2009, and the autopsy revealed the cause of his death was acute bronchopneumonia complicating mixed drug interaction. The patient’s family brought suit naming Collip, Barger, and Barger’s Clinic.
The patient’s family claimed that Collip owed their child a duty as a matter law. Collip contended there was no physician-patient relationship as he never saw the patient or reviewed his records. The Court agreed with the family ruling that Collip knew his services were being used for the benefit of a third party thereby giving rise to a legal duty. Additionally, the Court ruled that it was foreseeable for a patient to actually be harmed when a supervising physician fails to adequately perform oversight duties. It is this last comment by the court which is concerning, because foreseeability of harm gives rise to a duty under the law.
The Court’s ruling underscores a trend in which responsibilities are increasingly delegated out by physicians to nurse practitioners and physician assistants. It further highlights there may be increased accountability for physicians who delegate tasks but fail to provide necessary oversight.
As of this date, there are no reported cases from the Virginia Supreme Court yet regarding the liability distinctions and relationships between nurse practitioners and their collaborating physicians. Similar to the laws of Indiana, Virginia law requires a physician-patient relationship to exist in order for a physician to be liable for medical malpractice, and it is unlikely a Virginia court would find a duty to a third party based on a “third party beneficiary” analysis as rendered by the Indiana court. That said, as physician extenders become more common in the health care system, we can expect cases to arise and this area of the law to evolve, and physicians need to strictly follow the collaboration responsibilities of their contracts with nurse practitioners and physician assistants.