The previous distribution of this newsletter did not include the New Jersey and Delaware Statutes. These statutes have been included below.

Between the Rock and the Hard Place

Physician Assistants play a significant and increasingly important role in the delivery of high quality healthcare to our patients.

These men and women train for the purpose of helping both the supervising physicians and their patients in an environment that is ever more demanding.

Physician Assistants have now become a major target for the Personal Injury Bar. Nationwide they are being singled out for medical malpractice claims.

There are multiple reasons for this relatively new focus on Physicians Assistants;

1. In Pennsylvania as an example, Physician Assistants must now carry a full $1M in coverage. The plaintiff does not have to deal with MCare to access the full limit of the Physician Assistant’s coverage thereby creating a new deep pocket.
   
   
2. Some states make a Supervising Physician automatically liable for the conduct of the Physician Assistant. If a plaintiff attorney is able to successfully attack a physician assistant’s conduct, the physician’s coverage will also be brought into the case.
   
   
3. Physician Assistants are likely unfamiliar with the litigation process. They rarely provide expert testimony. Unlike their supervising physicians who experience depositions on behalf of their patients or on behalf of defense firms, PAs rarely get training in how to handle the pressure of being questioned. This lack of deposition experience plays into the hands of the plaintiff attorney and makes PAs an easier target.
   
   
4. Physician Assistants’ names are all over the charts of multiple patients under the care of multiple physicians and can be named in almost any case against the physician representing an additional deep pocket for the plaintiff.
   
   
5. Many practices have stored their PA contracts in a drawer and over the years have not reviewed or updated those contracts. This likely means that the terms of the PA agreement are unfamiliar to the supervising physicians thereby providing the plaintiff’s attorney with the opportunity to suggest that the PA is not being closely or appropriately supervised. This Oversight Issue can put the professional corporation, the Supervising Physician and the PA at significant risk of an adverse award.

How do we protect ourselves and our PAs from this onslaught of new litigation?

First, each practice that employs Physician Assistants has entered into a contract with each Physician Assistant. This contract obligates the physicians to multiple responsibilities. Many practices have forgotten the details of these contracts. These contracts must be reviewed annually to be certain the contract’s terms and the obligations undertaken therein are being followed.

These contracts usually outline the following and should be reviewed by all physicians and the office Director on a yearly basis. Make certain that each physician and PA within the group familiarizes themselves with the following positions and responsibilities.

1. The Primary Supervising Physician
2. The Secondary Supervising Physician(s)
3. The Supervisory Responsibilities for all Physicians within the Practice who utilize the services of the Physician Assistants.
4. When a PA can see a patient on their own
5. How many times in sequence a PA can see a patient before the physician must see the patient.
6. The Mechanism and frequency of reporting to the doctors;
   1. Office Patient Visits and treatment plans
   2. Consults
   3. Rounds

Second, each practice must remember that each State has different Statutes for governance and responsibility of the practice’s PAs. These Statutes change and you need to be aware of those changes. You can be certain that the Plaintiff Attorney will have reviewed them and will be up to date.

Third, implement a Sign In and Sign Out Log that clearly documents who the Supervising Physician is at any given time. Failure to do so can result in an internal argument as to which physician was responsible for the conduct of a PA when a claim is filed.

We are available through our Integrated Risk Management process to assist you and your practice or corporation in making sure that procedures and protocols are up to date.

Please see the below links to the Pennsylvania, New Jersey, Delaware, Maryland, Michigan, Ohio, and South Carolina statutes:

Pennsylvania
Supervision agreement must include the scope of practice and both parties’ responsibilities and be approved by the State Board. The primary supervising “accepts full professional and legal responsibility for the performance of the physician assistant and the care and treatment of the patients” in the practice.

https://www.pacode.com/secure/data/049/chapter18/subchapDtoc.html

New Jersey
Must have a delegation agreement in place. The law deems the delegating physician liable for errors against a patient when a delegation agreement is in place. NJ 45:9-27.17 makes clear that “In the performance of all practice-related activities...a physician assistant shall be conclusively presumed to be the agent of the physician under whose supervision the physician assistant is practicing.”

https://www.njconsumeraffairs.gov/regulations/Chapter-35-Subchapter-2B-Physicians-Assistants.pdf

Delaware
Must have a written agreement as to the PAs scope of practice. The law deems the supervising physician liable for errors against a patient when a delegation agreement is in place. DE Title 24, Ch. 17, §1771 Physician’s duties in supervision of a physician assistant states that “A physician who delegates medical acts to a physician assistant is responsible for the physician assistant's medical acts and must provide adequate supervision.”

http://delcode.delaware.gov/title24/c017/sc06/index.shtml

Maryland
Must have a delegation agreement in place. The law deems the delegating physician liable for errors against a patient when a delegation agreement is in place. MD 10.32.03.07 states that a Supervising Physician shall “Accept responsibility for any medical acts performed by the physician assistant.”

http://www.dsd.state.md.us/comar/comarhtml/10/10.32.03.07.htm
http://www.dsd.state.md.us/comar/comarhtml/10/10.32.03.08.htm
https://law.justia.com/codes/maryland/2016/health-occupations/title-15/subtitle-3/section-15-301/

Michigan
Depends on what the “practice agreement” states. PAs no longer required to work under supervision of a physician, but under recently updated law now work with a “participating physician” according to a “practice agreement.” The updated law allows for removal of language prohibiting a physician from delegating ultimate responsibility for quality of medical care services to a PA.

http://www.legislature.mi.gov/(S(mdjcnlfd33spunx1nuaqx5nj))/mileg.aspx?page=getObject&objectName=mcl-333-17047
http://www.legislature.mi.gov/(S(hjsr2r54qjbk2pn2i2etqhn3))/mileg.aspx?page=getObject&objectName=mcl-333-17076

Ohio
Supervision agreement must include the scope of practice and both parties responsibilities and must clearly state that the supervising physician is “legally responsible and assumes legal liability” for the services the physician assistant provides to patients in the practice.

http://codes.ohio.gov/orc/4730

South Carolina
Current SC law states that “Supervising” means...accepting responsibility for the medical services rendered by a physician assistant. New legislation has been introduced, but not yet made into law, that would strike that portion of the law.

https://www.scstatehouse.gov/code/t40c047.php

Article written by Lewis Sharps, MD, CEO