Welcome to 'patients at risk' a discussion of the dangers that patients face when physicians are replaced with non physician practitioners. I'm your host and the co author of the book 'patients at risk, the rise of the nurse practitioner and physician assistant in healthcare,' Dr. Rebekah Bernard. Nurse practitioner and physician assistant advocates often reassure physicians that they face little liability or risk when performing supervision, insisting that NPs and PAs are liable for their own
errors. But case law examples show that this is not true, because if state law requires physician supervision or collaboration, then the supervising physician can be held liable in the event of negligence by the non physician practitioner, even if they were never consulted about the patient's care. Today, we are talking with two physicians who experienced negative repercussions when errors were made by non physicians that they were supervising. Nancy Berley and Shenary Cotter are both
family physicians. Welcome both of you to the show.
Thank you for having me.
Dr. Berley. I thought we could start with you tell us a little bit about yourself and your medical practice.
Sure, I'm a family physician. I've been in practice, probably just shy of 20 years. This event happened several years ago, when I was working for a hospital owned practice. I'm currently not at that practice anymore. But it was a practice with three physicians. And at the time, the company we worked for was pushing us to have nurse practitioners to take some of the overload.
Was that more of a just access issue, a financial issue? What are your thoughts on that? I think it was probably
both. I think there were some access issues. I mean, we know that there were often gaps in you know, finding primary care doctors to fill positions. I think also nurse practitioners generally cost less they was it was very different how they paid them versus how they paid us. But I think this particular company is quite large, and I believe puts finances before patient care. And so my guess is that was where a lot of it came from
Dr. Cotter, tell us about your background.
So I'm a family medicine physician currently in a direct primary care practice. And I started out actually, as a nurse, I went to nursing school, got my bachelor's degree, and then I practiced in ICU for several years before I went back and did my post baccalaureate work to get into medical school.
Well, Dr. Berley, tell us about your scenario and how you got into problems because of the vicarious liability or supervision of a nurse practitioner.
So the interesting thing - the part that is interesting about this is that the nurse practitioner that was in our office at the time was one that we had hand picked, we had worked with her as a nurse, and we knew where she had done her training, she had done her training in person. And we thought that if we were going to have to have a nurse practitioner, that was the way to go with somebody who we knew who we trusted. And I don't even know if in the end, it came down
to her care specifically. So there were three of us - three physicians in the office. And one of us, not me, had agreed to be her supervisor of record. And so she was the one that was to sign up on the charts. However, we weren't all there together every day, we were each part time. So there was one day a week that I was alone in the office. And so when I was alone in the office, I was the one that the nurse practitioner would come to, she came to talk to me about a pretty innocuous
sounding case. And we talked about it briefly. And then she left and I didn't know but apparently that that particular patient came back and saw the nurse practitioner again, with the colleague whose patient it was - our nurse practitioner didn't have her own panels, she only saw our patients. And then that physician signed off on it. She then also subsequently had two ER visits, one sort of in between our office visits and one after and ultimately had a poor outcome. And so the family
sued. And I found out that I was named because I had signed off on that chart on the first visit.
Now when you look back and you see everything, did you have any clue? Or do you feel like you've got all the information or could anything have been had been done differently that could have changed the outcome, do you think?
I am not sure if anything could have been done differently if- our visit in the end actually the case was settled and I was found to have no part in the settlement because their expert witnesses felt that nothing that happened at that visit played a role in what happened eventually, but I do wonder what it would have been like had I seen the patient, had I gotten history, had I actually laid eyes on the patient versus getting it secondhand from a nurse practitioner even one that I
trusted. But I also was in the middle of a busy day, like it wasn't that I was sitting in my office, you know, just supervising a nurse practitioner, I probably, you know, was back to back with patients and did this in between. That's one thing, though is, I don't know if anything would have been different if I had physics if I had actually seen the patient.
Well, you know, I think that's one of the things that's interesting when we look at this landmark case of Dinter which was the hospitalist who received a report from a nurse practitioner by telephone about a patient, ultimately, the patient had a very bad outcome, and he was sued because he did not recommend that the patient be hospitalized. But there's some dispute from between him and the nurse practitioner as far as
what information was given. And the question is, did the nurse practitioner give the appropriate information that helped the doctor make the right or wrong judgment? And I think that is what it comes down to is unless you're examining or talking to the patient yourself, you're relying on someone else's information. And that may or may not be complete.
Correct. And because nurse practitioners or training is different, they may or may not get the same information or the same examination as we physicians
Well, I know that this has affected you professionally, and I want to get back to that. But first Dr. Cotter tell your story about what your scenario was.
I've been practicing medicine since 97. I've had two lawsuits, and both were associated with nurse practitioners, one of which I was supervising, and that one was thrown out because I was working essentially, it was going to be a case of sovereign immunity, so they didn't pursue it. The second one was a nurse practitioner that I was not the supervising physician on record. He was actually employed by a nurse practitioner staffing company, that placed him in the
nursing home. You know, an excellent nurse practitioner, I'd actually worked with him for a long time, when in the nursing home, I had a stable patient that I saw once every 30 day would. visits. In between my visits he started the patient on Coumadin with no indication. So I had no way of knowing he had done this, of course. And then one night, I got a call stating that they had been calling the nurse practitioner for the patient
having a headache. She had gotten Tylenol, he said to give her ibuprofen, and the next call was Percocet, and now he wasn't answering his phone. And so I said, you need to send this patient to the emergency room with you know, severe onset of an unexplained headache, not responding to these medications, where she was found to have an INR that was unreasonably high.
And while waiting in the ER for the inpatient service to admit her where they were going to try to reverse her her INR, she actually had a massive intracranial hemorrhage. She spent two years in the intensive care unit. And they brought a suit against me and the nurse practitioner for wrongful death. So this was not this was not a nurse practitioner I was supervising. This was an association. The company he had been working for was actually
shut down by the FBI. And so he lost his malpractice insurance, which handily caused him to be dropped from the case. And because of the lien that was presented by the hospital, that would have been presented a court without the other information that the patient's family would not be required to
pay the lien. My malpractice attorney said, 'what they're going to hear is that the family owes all this money in they're gonna want to give some money, you need to settle' and so they settled at $20,000 Under my policy limits. So now I have a wrongful death suit. You know, which for physicians, those don't go away. They last forever. They're on your record forever. And so just even hearing, you know, Dr. Berley's story in talking about this today, there's a lot of trauma
associated with this whole. And even though what happened 14 years ago, it still brings up a lot of trauma.
Yeah, because you work really hard to gain your professional reputation, and to have even
something excuse me online. And people just seeing that and jumping to conclusion and just you know, you it makes you feel like they're gonna assume like, Oh, that's a bad doctor, she killed somebody, even though you had nothing to do - like, help me understand again, how did you get named you were not the supervising physician, but you were the patient's doctor, the patient's primary doctor, and you didn't even- you were the
nursing home doctor. And you didn't even have knowledge of the prescription for the Coumadin. You just get a call saying this patient has a severe headache, you say please send them to the ER and then ultimately you're found or you have to pay or your malpractice has to pay or something that you had absolutely nothing to do with no knowledge of, and that follows you that oh my gosh,
I mean, what's worse about the situation now is that you know, the the case you mentioned Dinter, is it? Yes. You know, at with the pursuit of independent practice. To my knowledge, no legislation has increased liability or responsibility and The State and the AANP has not pursued getting it. So when they go and say we would like more, you know, independent privilege, we do not
want equal responsibility. And so the physicians are being left in this position now, where if I'm seeing a patient, even in my office who's getting care from the nurse practitioner in the community, they do esthetics, they do IV infusions, they do joint injections with with PRP.
I mean, they've set up all these little practices where they do whatever they want to do, basically, I'm actually responsible for everything about that care that my patient is getting from somebody that I have no association with,
Wow, that really gives me chills, because like you mentioned, you know, when you talk to lawyers, it's very interesting, because they have this totally different perspective. They're like, Oh, yeah, you know, you pay some money. It's a claim it's a suit.
It's personal.
they do not see it as personal, they see adversarial relationships is just adversarial in that setting. And then somehow they're able to disconnect. And we can't do that. Because I think we we still care about our patients. We don't want them to be harmed. And it is personal, because we do take a lot on ourselves.
Well, I mean, having to have your personal assets in tenants by the entirety is personal, I mean, this, this affects our lives. This is not impersonal, and then caring about a patient and having somebody tell you that you that's what they basically said was that I killed my patient. That is, it's doesn't get more personal than that.
Even though you know, you didn't, but you can't really defend yourself, because there's just this thing out there on the internet, or wherever else, and you really can't defend yourself, Dr. Berley, how was your emotional state and dealing with all of this?
It was definitely rough. Because, you know, I didn't know until the end that I that it was settled that if that I wouldn't have any part of the settlement. You know, I really didn't understand in that case, why they couldn't take me off of the case, if they were saying that that particular visit didn't contribute to this
incident. But I think it had to do with the fact that the nurse practitioner had seen or twice and, you know, and it was very similar what Dr. Cotter saying, which is that we had a case where it was a very poor outcome. And there was it was just it was a very bad situation in the end, and were two ER visits that didn't play into this case at all. The only thing that played into the case was
our visit. Once they actually settled with us, they gave up on one of the ER physicians, it's very it is it there is some trauma associated with me, I still went through a deposition, I still you know, was preparing for trial, I was dealing with lawyer visits while trying to maintain a practice and also have a family and a life. And like I said, this has this, this does travel with me. I'm currently working in
telemedicine. And so every time I apply for a state license, this comes up and I have to have like a paragraph and that sometimes they ask for different questions. I mean, it's that how many years is it now like six years or so. And I'm still sometimes like emailing the lawyer to ask a question.
So you're still actually paying money to consult with attorneys and potentially facing job repercussions and dealing with the trauma. So it's actually still costing you money.
I think my company is still paying for it. Okay,
good. It just but so it's costing you aggravation. And
oh, yeah, definitely. Yeah. Yeah. I mean, the other thing, too, and I had mentioned this at one point was that my current job, I was per diem, and I was trying to get a full time job there. And they were all set to give it to me. But when they found out that I had an open case they had passed because they can't credential somebody with an open case, because then it's too hard to get all the licenses that I need.
So you actually lost a job opportunity over this.
Almost what happened was it turned out that it was because it had already settled. We were just waiting for the dismissal through the court. And once the court dismissed it, they weren't able to take me on. But yes, I absolutely could have lost a job over this.
Dr. Cotter, what advice would you give physicians listening that may be asked to supervise or work with non physician practitioners in light of your experience?
That's a really hard question. I think first of all, I think that it would have to be a very, very specific and controlled situation. You know, both of us. You know, Dr. Berley and I were working with nurse practitioners that we knew that were good nurse practitioners, but they're not physicians, and you're really relying on somebody that has so much less training and experience in apprenticeship training is what makes doctors that's what makes us different.
So I think you have to be really able to be available and hands on and so I would say if the nurse practitioner could go in and see my patient, and then I could come in briefly At the end, and the nurse practitioner could present I can lay my own eyeballs on the patient, lay my own the hands, which are the tools of my trade on my patient, then I would be comfortable in that situation or in a situation where I had designed specific protocols, like, for example, if I worked in an office, or I
wanted a nurse practitioner to see my acute patients or to manage phone calls, and we would have a very specific set of protocols that that nurse practitioner would follow what patients she would see, or he would see and how each thing would be handled. I think that would be the situation that I would need to have.
Yeah, I agree. I mean, for me, even just having them see acute patients I am worried about unless I know it's something that seems so low acuity for me, I would say maybe if I had a chronic patient for a follow up of something that I just wanted them to check in, or maybe do some education, and then if anything was different, I need to be involved. I mean, it's but and then but then you ask yourself, like how is that really helping me be more efficient in seeing patients?
There's a role, but I agree with you. From a liability perspective, it seems pretty limited. What about you Dr. Berley, what advice would you give physicians who might be supervising?
Yeah, Ithink that Dr. Cotter makes some really good points. Personally, I don't see a place where I could ever supervise a nurse practitioner again, one of the the the other thing, too, is just so you know, the chief complaint on the patient that that was this case was headache, which is one of those pretty low acuity, sick visits, that, you know, unless you have very highly trained staff, they're not going to know what to put in with your nurse practitioner on
what to put in with you. And so that it's to me, I think, again, I think, yes, very controlled circumstances, but really, I won't do it. There are my telehealth company, that is primarily doctors is going to start employing nurse practitioners. And I've been very clear that I will not supervise their planning to only have them in states where they don't need supervision. But again, you know, you have to remember that physicians can be called like, it becomes a matter
of who touched the chart. Yeah. Right. So if I saw a patient, and then they saw a patient, I could still be called anyway, I don't. And I don't know how different it is from my physician colleagues, except that at least the training with my physicians, with my physician colleagues is the same as mine. I just think we have to be very, very careful of what we've signed in, I often see these things where what do you think I'm being offered this amount of
money to super? And I'm like, please don't please do not.
Yeah, don't do it, unless you really fully understand what the potential outcomes could be. You know, when I hear chief complaint of headache, I get scared because there's you know, tension headache and stress and, you know, sinus and then there's, you know, intracranial bleed.
You know, it's like when I hear dizziness, I mean, these are what I know, this is to me, not something that I would feel comfortable, unless it was a follow up chronic migraine doing well, you know, maybe that, but you make such a good point in that you don't even necessarily have to be actively supervising
to still be implicated. And I think the lesson here is that you have to personally speak to and examine patients, really all the time to ensure that you're going to be able to at least have the best chance of not getting into trouble through somebody else's work.
Yeah, and I would say that the fact that this that one visit became this was shocking, even to this day.
It's a cautionary tale. Well, let me ask you this question. We recently spoke with William Sullivan. He's an ER doctor, and
he's an attorney. And he has a very strong point of view, he says that he thinks the way that the system needs to change to ultimately benefit patients, is to completely allow full practice authority independent practice for any of these clinicians that claim that they can do the same thing or better as we can, but that they have to receive the exact same liability and be held to the same standard of care as physicians. What are your thoughts on that? Dr. Cotter?
So I, I'm, I think that's really difficult because I kind of have a I kind of lean towards believing that what the end result of that would be is that I think the independent nurse practitioner would probably go away to be quite frank, I don't think that they would sustain the responsibility, the liability that I am able to sustain and that you all are able to sustain because we have an MD and we
have a backing. We've worked so hard, and we put in hours and we train and we train, there's a there's a heaviness, there's a weight of responsibility of taking care of patients, and it's represented in the world by liability, but we know that what this is, is that we care about our patients and we don't want
to hurt somebody. And I think that if that system were to be in place, I actually think that a lot of the people not just nurse practitioners, but other people who claim to practice medicine or health care would would not continue to exist the way they are right now.
I do think that I just, I am terrified to think of the people that will be harmed in the meantime. But you know, Dr. Sullivan makes the argument. Well, I mean, and in the long run, will more people be helped by not dragging this out? I don't know. What are your thoughts, Dr. Berley?
So I guess the other piece to all of this is the thought of the legal system and what we have become in this country. And so thinking about the fact that anybody who touches the chart is going to be liable. When I think about Dr. Cotter's experience, I guess, I wonder, would they, they it sounds like they still would have come after you, even if the nurse practitioner had been completely liable for deeper
pockets. So I guess, my concern would be that we would still be held liable, maybe not if we were maybe not for that particular visit. But if we are the physician in that office, if they are our patient, I'm not sure that this completely goes away. So that's my concern, because in my case, actually, I believe that the nurse practitioner actually had the exact same malpractice amounts as we did. And so I think the lawyers were really just trying to get as deep as they could
into the pockets. And I'm not trying to, you know, say anything about lawyers, I mean, I think they have a job to do as well. But, you know, they could take from each of us.
So one of the ideas that I've come up with, for my practice, we thought about instituting and have not yet had need is a, or disclaimer or release of liability, stating that a patient acknowledges that any care that they received from a nurse practitioner outside of our office, or any any practitioner or clinician, other than an MD, they release us from liability for any outcome of that for that same exact reason, Dr. Berley.
that is such an interesting idea. I think that's something that we might want to get with our attorney colleagues and ask them about something like that and our malpractice insurers and ask
them about that, too. Because I think that there needs to be pressure on malpractice companies to have premium parity because we know right now that you can get malpractice insurance as a nurse practitioner, far less expensive than as a physician, because historically there have been lower rates of malpractice and for the some of the reasons that we've talked about. So that I think that's a very innovative and interesting idea, Dr.
Cotter. In the last few minutes that we have, do you have any other information that you would like to share about this topic with our listeners?
Well, I would actually be curious, Dr. Cotter, what is your malpractice like now because my colleague, who also was she was settled and they part of the settlement was related to her. She had a she pays a very high premium for her malpractice. And I think that's another thing to consider too, in the long run. What this does for you for your malpractice moving forward,
it went up, I was in private practice. So went up for many years, and then it finally gradually went back down. Like I said, I think this was 14 years ago. So now I'm in direct primary care, and my premiums are actually very low. I'm also married to an OBGYN, however, who was one of the most frequently sued types of physicians, and his malpractice has varied. It's been as high as $33,000 a year due to being in the state of Florida and what a malpractice suit does to your
license. And yeah, wow, that's a lot. Yes, it's a lot.
And they wonder why don't people want to go into medicine anymore, right? Gosh. If you'd like to learn more about this topic, I encourage you to get the book. It's called patients at risk, the rise of the nurse practitioner and physician assistant in healthcare. It's available at Amazon and at
Barnes and noble.com. And if you're a physician, and you'd like to learn more about getting involved with advocating for physician led care, and truth and transparency among healthcare practitioners, I encourage you to join our group. It's called physicians for patient protection. Our website is physicians for patient protection.org Thanks so much, and we'll see you on the next podcast.