Midlevel Malpractice with Attorney Robert Painter

clot in her lungs. The only reason the details of the case became public was because of a lawsuit filed by the patient's family court records revealed not only a lack of appropriate medical care, but more importantly, the incredible efforts that mercy health systems, a multibillion dollar corporation routinely went through to hire and credential nurse practitioners to work in positions completely outside of their scope of practice, putting patients at risk to save money

and increase profits. Today we're going to talk with attorney Robert Painter about the role of the legal system in holding bad actors like this accountable. Mr. Painter is a former hospital administrator, who is now a medical malpractice and wrongful death lawyer at Painter Law firm in Houston, Texas, Mr. Painter, welcome to the show.

profitability. And what we've seen then is is these lobbying organizations really coming about trying to take the mid level and just delete the mid and make it level with physicians who have the higher

level of care. So what I started seeing, you know, really after going to law school, and then starting on the defense side, this defending hospitals and medical schools and providers, and then since '06 being on the plaintiff side, the patient side, is seeing the role of these mid level providers, whether it's nurse practitioners or physician assistants, just really getting increasing roles and responsibility without that

commensurate education. And there's so many cases where I've seen this, that I started really noticing this and wanted to get more up to speed to be able to prepare it, or to be able to prepare and represent my

clients. In fact, just I have a couple examples of cases I'm working on right now one with a nurse practitioner, one with a physician assistant, many, many with CRNAs, that we could talk about, but you just start to see, once you're you are even tuned to this, you see the same issues over and over.

What can we do to help patients more?

series and all that. But anyway, you know, setting that one aside, pretty much everyone really everyone who goes into medicine, everyone who goes into any of these healthcare fields does so to help patients. And with what I've seen, you know, from my perspective, as is just there are more and more demands on physicians and healthcare providers. And sometimes the person who gets lost in the mix of the healthcare team is really the most important member, which

is the patient. You know, one of the things that I thought was really interesting about the intro of your book about the nurse practitioner is, you know what, without a lawsuit, the truth about this nurse practitioner, and that type of the facts surrounding that are would be would be shielded. And in fact, that's exactly how you have for example, in the case of in Dallas with Dr. Duntsch, Dr. Death, that's how those cases

came about. Because there are so many privileges with hospitals about how credentialing is done, how hiring and The peer review process and the hospital committee process is shielded from public view that really without litigation, and so and even then it's tough, you know, these these facts don't come

out. So even though I have I handle health liability claims for patients, I really view doctors, hospitals of those who have the best interest of patients in mind, it really is allies rather than than adversaries philosophically.

case. And we're looking into this situation where you have a nurse practitioner who makes an entry on a medical record as an intensivist. That's pretty interesting to me to say you have a nurse practitioner intensivist, as an intensivist by definition is a critical care specialist, who really as extensive training on treating the most acutely or chronically ill patients. And needless to say, in that case, the nurse practitioner intensivist blew it and and saw a patient who was

really, really acutely ill. And just within minutes of her evaluation of the patient in the emergency room, he had a an arrest and was resuscitated but was left with a permanent brain injury. That situation you start looking into as you go over and

over and over on it. But you start looking into the backgrounds of the training, what qualified this person to be an intensivist you know, the person who's seeing a really ill person so ill that emergency room physician is ordering in consultation with a with the ICU and ICU admission. What qualifies that nurse practitioner? Well, this one in particular had an online degree. So you look at a for profit

online degree. And you're looking at, you start digging into it and saying, 'Well, what exactly qualifies this person?' It's unclear that there was much of any clinical emphasis at all. And you see that over and over. There's another case that to go over to the physician assistant side of physician assistant who was tasked to see neurosurgery console so level one trauma center. So you have a guy that is that hits a tree at 65 miles an hour, head on spine surgery

is consulted. And a PA shows up I suppose to the PA and her level of supervision by the the neurosurgery the syllabus, rather the spine surgery service was exclusively through text messaging, would you want to have if it's you or your loved one in a hospital that has a loss of sensation and extremities, that slowly moving upward? They finally get a spine surgeon consult and you have a PA show up is texting the spine surgeon No way. And we see that though, over and over and over again.

thing. And within a couple hours, you know, they called me back and said, 'oops, it was a big mistake.' You know, you're good. So I guess the reason I'm bringing that up is they have all these kind of funny, esoteric things they want to do to doctors, you know, gosh, I'm not admitting enough patients during COVID, which I okay. And so it's a question so so my question is how does like I couldn't get neurosurgery

privileges? Right? I couldn't get intensivist privileges and I'm not complaining about that. But my question is, how does the PA get intensivist privileges? How did they - How did they allow this or because I guess I don't even understand I how.

medicine. When you have administrators who aren't physicians making calls on the way medicine is practiced just the same way when you have judges who aren't trained in medicine, science statistics, or anything, making these these determinations on on a lot of things, and we'll talk about

that later. But you know, I think what what happens is this is it goes back to is you're saying, hey, the credentialing or re credentialing for physicians the process of how can you get permission to practice our hospital, they look at you not really, as independent physician with independent duties to the patient, but they look at you as a revenue center. If you aren't generating enough revenue, then

what's the problem? You know, and and I think when you look at it really with with the mid levels, is mid levels, which used to be called another term was physician extenders is they were away to basically allow physicians, in theory to be able

to see a lot more patients. And I think what they're doing is, it's really hard to rationalize how this makes sense in terms of patient care, because in my view, the solution is you, you put more qualified physicians or the medical staff, and then you can use the mid levels to, to handle things to assist under appropriate supervision. But what they've done is is just in a way, they're they're looking at to the hospital, there's a lower overhead, a lower expense to have a nurse practitioner,

physician assistant. And then if you have them having independent practice authority, they can order all the tests and all the the Diagnostic Imaging Lab work, and all the other things that end up making the hospital lot of money. And I think that's really the answer. It's a it's a financial driven decision. What I expect, as you know, it seems like they're these trends that happen in healthcare and, and they'll last 10 years, and then you figure out, it doesn't work,

and then you go back to it. But the problem is in this one, it's to me an existential crisis, because it's demoralizing to physicians, I think you you know, you don't have to go much farther than bed Twitter, just to see the type of therapeutic venting that goes on there of things that, you know, what are we doing here? You know, and I really feel bad about that.

the States. Well, you know, in some ways, and in pandemics, it would be convenient to have a national policy, but you know, in general, you have 50 states with 50 different sets of laws. Like for example, in Texas, really the the coverage of mid levels is not really that different from physicians. So part of that could be tort reform and form part of it is really practice area dependent.

But one of the things that I think has been mucked up in some jurisdictions is what exactly is the responsibility of a mid level provider when something

goes wrong? Now typically what I've encountered, and I could give examples of many, many, many anesthesia cases, where you have physician anesthesiologists who have extensive anesthesia and critical care training, and then you have certified registered nurse anesthetists who are mid level providers, who have a lot less training, usually when there's a case where there's an adverse outcome that we think is related to negligence, we'll name both the anesthesiologist and the the

CRNA. They're usually employed by the same practice group, and they usually have the same insurance. In most cases. Almost all the cases though, what you read on Twitter, or LinkedIn about how brilliant and capable the CRNA is, or evaporates very quickly when you depose because then it's a matter of hours depending on the anesthesiologist, although occasionally you'll get some that that'll stick with it. But in terms of the coverage, I think there's something that you have to look at with nurse

practitioners and CRNAs. People like that because they come from really a different is an odd because it's really an odd creation of law, where you have people who were really being allowed to practice medicine at some level, who have no medical training whatsoever. They come from a different and entirely different discipline, a nursing discipline. And I know you all know that very well. But a lot of people don't want to judge us, a lot of attorneys don't

understand it. Under Texas law, for example, the Board of Nursing is very clear, and regulating nurse practitioners that there are some functions that nurse practitioners do that are nursing functions. There are some functions that are medical functions. And so in the cases that I handle involving nurse practitioners, I'm very careful with the experts that we use to delineate which is which, because that's really an important distinction.

practicing medicine. And so there's this idea, and I know, we've listed a few of the cases, you know, I think it's Kaiser, and then there's the Lattimore versus Dickey case, those aren't in Washington, per se, but this idea that nurse practitioners, you know, you have to use an expert, that's a nurse practitioner to testify against standard of care for a nurse practitioner, and vice versa physician against a physician, and we're seeing some of these

cases where that's not true. Can you talk a little bit more about that just as a general rule, because people will first say you can't testify against a nurse practitioner, and I'm finding in some of the legal work, I'm doing that actually, there's a number of ways you can talk about it, because they're doing my job, for example, if you're serving as a pediatrician, you know that difference?

law say? So what I would look at anytime that I I look at, you know, for example, just yesterday, or Friday, today, I was working on a case involving a nurse practitioner, that nurse practitioner who was an intensivist, and but was not really anyway, it's a whole different story. But I go back and look at it, I re review what does the nursing board say, in this? In this case, it's Texas. So I look at what does it say.

And then what you want to do is you look at what you need to do to qualify an expert to testify as to the standard of care, that's really the the standard of care are set by the licensing agencies. So for a nurse practitioner, it would be the in Texas, the Board of Nursing, for a physician assistant in Texas

would be the medical board. And you look at what it is now in Texas, we have kind of a bifurcated system, where you have to have Initial reports that kind of our threshold reports the define the standard of care, that determined that just gives fair notice the other side what's going on, and then satisfies the court that the claim has merit. Those are very

regulated. Once you pass that hurdle you go in and you have your full case, some of the cases that use you sent over where those initial threshold reports. And one of the things is that you look again, at the statute, each state regulates what's an expert in Texas, you look exactly at the statute, and what is the statute say? So our statute says, which is civil practice code section 74, in terms of looking at who qualifies as an expert sections for physicians and healthcare

providers. So it's interesting right there in my book, it's a no no to call a physician, a health care provider, you aren't a provider, you're a physician. Okay? So there's, that's that's a different thing. Right? Okay. There's a separate section for other people who are non physicians, they're called providers, okay. So you look at it and in our law to testify against a physician, you have to

be a physician. Okay. It reminds me of the old Sesame Street things, the boxes, things that are different aren't the same, which one of these is different? Okay. So yes, the nurse practitioner, yes, the PA Yes, the crna. They can do some things, but you don't get to testify against a physician under Texas law period. Okay. Second thing, you don't get to testify as to causation. In other words, you can't say what error occurred and what caused harm, aren't allowed to do it.

Okay. You go to the statute, though, about health care providers. And it's kind of interesting, and there's actually one cases that you emailed about, or we discussed is the simonsson case. And there's a later case that's called San Jacinto Methodist Hospital versus Bennett. And it's a 2008 case out of Houston's 14th Court of Appeals. I love this case, because, you

know, I use it a lot. And it's a case that explains why under the law, a properly written report from a physician can provide opinions as to the standard of care for a nurse practitioner, or a physician assistant. And again, it gets back to looking at exactly what the licensing authorities say, nurses, advanced practice nurses, they practice primarily nursing, not

medicine. Under Texas law, they're allowed to perform certain tasks that have to really be policed in written agreements of supervision from a physician. The same is true for

physician assistants. And so you look at it and the question is, again, under Texas law that varies by state, the question is, under Texas law, when there's an opinion as to a health care provider, you could have that opinion on standard of care come from another health care provider, ie a non physician, or you can have it from a physician who's familiar with the those same issues that

are at play in the case. So like in this Methodist Santa Santa Methodist versus bad case, what the court said is the expert report there, who was a physician internist. And what the Court of Appeal said, Well, of course, the internist physician's report comes flat out and says that he is responsible for in this case, it was a decubitus or pressure ulcer case, that of course, he understands what the standard of care is for a nurse practitioner, for a physician assistant to care for those. So

he has that expertise. And the court said, of course, yeah, it flies. So absolutely, you can do it. But in each state, there's going to be there will be different authorities, and you have to start with it, and say, Well, what is the licensing authority? Say, what our pa is what a nurse practitioner is allowed to do? And then what is the definition of an expert. So without those definitions, you can't really say

t you need will be different. If I were looking, for example, in Washington state, which is on of those unfortunate places th t have, you know, unlimited mi

level authority. So anyway, yo have this as this growing tr nd, what what I would look at it there is, you know, there has to be a definition, there's a li ensing authority, that says wh t those mid levels are al owed to do, again, as in redible as it is, to me, even in a state like Texas, which li its nurse practitioners, you ha e a nursing board, granting au hority to a non physician, so eone with no medical training wh tsoever, to practice medicine wi hin a box. It really doesn't ma

e any sense. But you have to lo k at what that says under Wa hington law, we would look at th se rules and regulations and se what's allowed. And then I st ll think that there would be an argument to be made that, you kn w, in terms of looking at wh t like, for example, this th s pressure sore case, the ty e of argument that I use in ap ellate courts or in trial co rts, really, that whens in ariably is there's a standard of care that substantially de eloped among different di

ciplines. So that could be th re are some areas that you th nk about it. For example, in us ng the COVID situation, yo 're going to have er ph sicians, pulmonologist cr tical care physicians, mid le els, that in certain issues ar going to follow the same sa e standard of care, you're go ng to have more advanced pe ple that have a higher level, bu there's going to be that ov rlapping thing. So in the ex ert, the experts I work with I ncourage inclusion of la guage in the reports of th

ngs like this. Well, if th y're giving an opinion, for ex mple, on nurse practitioner, th standard of care on the sp cific issue in this case is su stantially developed in the fi ld of whatever my medical sp cialty is plus nurse pr ctitioner or PA, training for th s particular type. And, and th t work. So if I were to look at a case in Washington again, th way I would look at it is I wo ld go straight to, if it's a nu se practitioner case, go to th Board of Nursing rules, yo

'll look at it. And that's ho you have to thread that ne dle. But it's very, always a ve y careful thing.

Have you ever thought also about this contradiction or paradox in the arguments that a physician cannot testify as the standard of care of a nurse practitioner who is practicing about that, practicing to a degree medicine, and I'm allowed to do that, but a physician, who is really practicing medicine, is not allowed by law to testify as to my standard of care. I mean, it's a it's an absurd proposition. And I think these really need to be challenged and

pushed back. And I'll tell you another thing, really, that I would encourage, in terms of physicians, is hopefully about the supervision you're given. You're giving, you know, because it's under these. Well, for example, in Texas, it would I'm not, I'm not trying to be completely anti midlevel, because they have a role with

supervision. But if you look at the unfettered practice of medicine, by people who are not physicians, in a state like Texas, it could end tomorrow if all physicians just terminated the supervision agreements. So you don't have to do that. Now, of course, then the mid levels may go to legislation say well give us yeah, let's let's adopt the Washington model. And I think I don't think politically

that would fly in Texas. But these are some things that, you know, we didn't get in any of these jurisdictions, you didn't get there overnight. It was a gradual erosion.

priority. So you know, what do you say to those who just say, well, you're just the lawyer who hates nurse practitioners, then, and that's it, you must have doctors in your family, and you're against them losing their, their piece of the pie?

ion. But as I you know, as alwa s, when I engage whether which I really don't do that often, ut what I would say is this, y u can look at it is we look at cases of meeting my in my prof ssion, I look at cases, our off ce looks at cases based on pati nt safety lapses. And sometim s those are physician cases. ometimes they're mid level, ometimes their hospital, what I ould call system cases, and whe ever the truth is, is where w go. And so I don't have a pract ce that's limited to mid levels.

I think that mid level, what I uess the phrase that I like fo the scope creep, and the sco e of, you know, in my prefere ce, I think the best model f r patient safety is to have mi levels as physician extende s to help on the lower acuity ype things. But as scope creep h ppens, and you have more autonom of people with less trainin , it's bad for patients and you re going to see it over and ove

and over. You're gonna see the e bad outcomes and you know, s when I tell people when they yo know what, usually what I'll ge in the hate mail from after s eaking or giving an article writing an article or somethi g about it is, well, you must yo have something against a mid l vel. So what this look at the ense that we file we sue, yo know, a wide variety of cases o hospitals, physicians, whoever It's not saying these are ter ible people, but it's just, i

's about patient safety. I think we will see in the next 10 year , a lot more suits against mid levels, because you're oing to see you see more and mor autonomy. What I always challen e with mid levels who who com to me with because they typical y have that is the say, you kno , for example, the crnas, hough I'll see this, well, w 've done these studies, where c na care is actually not equal t but better than physici n anesthesiology care. And so e're really, who wrote the stu

y? Well, lo and behold, it was crna Association. Okay, let's g t let's get real here, you kno , and those those type of situ tions are kind of amusing to me,

them. And so you want to stay out ahead of it. And I also encourage physicians to intern terms of patient safety. And I wrote about today about a case up at the University of Pittsburgh Medical Center, where there was a whistleblower who was a physician on the medical staff there who revealed some really alarming things that were going on and in patient surgery scheduling, and the US government ended up intervening in the lawsuit there and it's a

very serious matter. So what I would say is this, there are things that physicians have unique perspective to see if you see something that's against patient care, speak up. That's actually what like in the Doctor Death case, what led to that, getting to the medical board as a physician, in the operating room saw a surgeon he felt this guy's skills are so unskilled,

he can't even be real. Well, maybe that's something that physicians rather than just ranting on Twitter, could speak up and do something about and the same goes true with physician assistant nurse practitioner supervision. When you see it, speak up, do something about it.

ed patients at risk. And if you re a physician, we'd love for ou to join our group physicians or patient protection. Thanks so much. We'll see you on the n xt podca