Are you Liable: The Truth About APPs

19 Comments

If you read the October column, you know I took a beating from those who find my work too quixotic and ethereal. A particular person wanted me to get back to the real “old time religion” and speak to more concrete issues.

I’ve decided to oblige by revisiting one of the most tangible and pressing medical issues of our day: The supervision of advanced practice providers.

You might be happy that I’m giving Marx, Nietzsche and Foucault a month off, but I warn you that you might not like the nature of this discussion either. It involves what 75 percent of you do every day –the utilization of PAs and NPs – and I’m going to call it like I see it.


ADVERTISEMENT

By the time you read this, I will have given my talk on Advanced Practice Provider Supervision at the ACEP 2015 Assembly in Boston. I am hoping, like Paul Revere, to make it out of town alive. Current Las Vegas odds have me at about 50-50. Why was I given this topic? Number one, because I’m old and can put up with your criticism. Number two, this is a real quandary, and in all candor, we don’t know what to do about it.

The lawyers love our confusion and indecision. If you’ve ever wondered if you could get sued for that patient that you didn’t see but for whose chart you signed? Let me just end the suspense: Yes, you can, and in the worst possible ways. And if you signed the chart and your group billed the 100 percent fee and not the 85 percent fee for simple supervision, you could be charged with a felony. Go ahead and ask yourself another question: How do I look in stripes?

Having watched depositions and lawsuits for 40 years, there is a definite trend in what is asked and how such inquiries are answered. When an Advanced Practice Provider (APP) is involved in a suit along with a physician, plaintiffs’ attorneys are looking on the chart to find proof of the physician’s involvement in the actual care and treatment of that patient. Physicians crumble under this type of questioning. “Show me, doctor, on this chart, where you actually saw the patient?” “Show me your policy for which cases must be seen by the supervising physician?” “Show me, doctor, the formal advancement program where you bring midlevel providers along and oversee their work as they develop and improve their skills.” “Are you aware, doctor, that the patient thought that the APP was actually a physician?” “Tell me, doctor, who would you see for one of your family members if you could?”


ADVERTISEMENT

These questions are endless. I have trained both APPs and physicians to counterpunch on these issues. But there is only so much you can do. Now imagine these questions are being asked in a courtroom in front of 12 people picked from the voters’ rolls, who are watching a huge portion of their stagnant paychecks go into their health insurance premiums each month. If you don’t think I couldn’t make you squirm on the stand and inflame the jury, you are blind as to what is happening.

In the last two months I have made eight residency visits. At two of them, I tried out the supervision talk and then picked on non-suspecting senior residents and tortured them with 10 or 15 of these questions. They are always defeated because nobody ever told them that these types of questions would be asked or how to answer them. One young lady informed me that I was being hurtful. That’s the new word for those who lack the intellectual resources to fight back. Hypersensitivity is the surest sign of mediocrity. This is emergency medicine, not dermatology. If you can’t take the heat from me, imagine how well it is going to go when a great lawyer has you in court, writhing on the stand. Remember, those people have real money on the line don’t back off.

What we are lacking is a clear vision as to what supervision of non-physician clinicians means. We have more or less a reasonable idea when we’re talking about the residents and how we are going to watch them throughout the training years. It is interesting to note that the residents who have graduated from medical school and may have two or three years’ experience still require someone to be involved in their cases. We know what they should know. We know how long they’ve trained. We know what was taught at grand rounds and how to progress them in their knowledge base and responsibilities from year to year. I contend there is no such consensus in our working with APPs.

Before we can develop this consensus, we have to agree on our terms. After all, who we are as clinicians, and how we project ourselves to patients, impacts our work environment. When I was third year medical student working at Wayne County General Hospital, Detroit’s county hospital, a patient asked me: “Are you an intern?” I responded quickly: “No, sir.” I didn’t bother to tell him that I was only a third year medical student, two years behind the interns. I was honest but not candid. We need some candor badly in dealing with patients and at least letting them know who’s who, what’s what and who they’re actually going to see. How do we define ourselves as supervisors? Do we have an ethical, moral and legal obligation to the patient? Countless mothers and fathers, who seem quite ordinary, are able to rise to heroic heights in defense of their children. So what do you say when they are told they are about to see “the doctor”? Be honest. Who do you want your kids to see? And wouldn’t you be angry if you were deceived by a technicality? Is the nurse with a PhD degree to be called doctor? The extent to which patients are confused is unbelievable. And I hate to get philosophical again on you but what do medical vows mean? I know, let’s ask the jury.


ADVERTISEMENT

This year between 30 and 40 percent of patients will be seen by APPs in emergency departments. Who needs to be overseen? When should the physician get involved? Do these various levels of providers turn on each other in the face of a lawsuit? These aren’t small issues. The number of EDs has decreased by 20 percent in the last 15 years. Free-standing EDs, minute clinics and urgent cares have increased. State boards are allowing NPs and PAs to open solo practices in some areas. I think this change represents a brave new medical world. If APPs can see every patient who would otherwise be seen by physicians, then what is our new role and responsibility? This subrosa debate goes on everywhere, but no one seems to have the courage to bring it to the surface.

This is not the first time I’ve raised these issues and have felt the wrath from all sides. Our leadership should know it cannot abrogate these professional roles and adopt a laissez-faire attitude on the scope of practice issues. The real question is: Who’s going to get to do what for how much money? Who’s the boss and does there need to be a boss? New rules are coming. What is our place in the formation of these rules?

I hope we can keep this debate ad factum and not ad hominem. I have already been called the usual list of names by the pseudo-cognizante. To raise certain questions is to be called an elitist. But we should be speaking by virtue of our oath for the welfare of patients and those who cannot ask these questions for themselves.

The Catholic philosopher John Henry Newman said: “To live is to change. And to be perfect is to change often.” The good cleric is correct but I would add: All change is not progress. We do not want progress by accident, but by intent. The vicissitudes of the marketplace cannot be the only force that decides who will be the second provider on the afternoon shift. Supply and demand are not sufficient drivers here. Neither is the fear of litigation. The clinician labor market is dynamic and in flux and we need to pursue some sort of organization and consistency.

Given this, there are some questions you as the physician should know how to answer before the patient’s lawyer asks them. Number one: How are your APPs screened and credentialed? Number two: Do the APPs have advancing levels of responsibility and training? Number three: Has the hospital or system credentialed them as they would any other provider? Number four: Who oversees the delineation of privileges? Number five: How do you prove you’re actually providing supervision? Six: Who did the patient think they were seeing? Seven: What is the written policy whereby the hands of physicians need to be laid on the patient? Which cases need to be presented to the physician level? I have not seen a deposition where an APP or physician involved jointly in the case has not had these questions asked. Most physicians do not even know if their supervising status triggers a separate set of insurance policy limits.

We know that we have a problem. We know that there should be a solution that we can agree with. We know we need to protect the patient. But we need to protect the physicians and the APPs as well. I’ve actually seen a case where the physician was driven into bankruptcy and had never laid eyes on the patient and was never asked to lay eyes on the patient, over a young man with chest pain.

As we go forward, I want this piece to provoke conversation as we search for a meaningful truth, not demagoguery. ACEP has no choice but to deal with this issue. The Emergency Medicine Residents Association (EMRA) – whether they realize it or not – are up to their eyeballs in this one. This is our area of interest and our responsibility. No one has been delegated the job of protecting us, except us. The input from the readership on this issue is both sought and appreciated. I commend the amenity of this debate to your care.

Advocatus diaboli – “the devil’s advocate”

Photo by Phil Roeder

ABOUT THE AUTHOR

EXECUTIVE EDITOR
Dr. Henry is the founder and CEO of Medical Practice Risk Assessment, Inc.; past president of ACEP.

19 Comments

  1. Well, that’s pretty terrifying. Look, I’m already squirming! I think these days a lot of EM docs are hospital employees and “our group” is a corporation that pays us an hourly rate for our work and does all the billing without transparency or any input from us beyond the medical chart in the EMR. The APP charts show up retroactively in your EMR signing queue along with your own and buddy, you better electronically sign them or the medical records department will bring up your delinquent charts as an issue before the hospital credentialing committee. Any tips in this situation?

    • “Physician Attestation: This patient was not presented to me, I was not clinically involved in the care of this patient, and I give no guarantee that the care of this patient was provided safely or effectively.”

      If they force you to commit fraud and sign charts of patients you didn’t know about, then drop that attending addendum a couple of times and watch your hospital policy change before you can blink your eyes.

  2. Well said, and primary reasons for my retirement last year. And who assigned the title “Advanced Practice Provider?” Implies to a layperson that they have more advanced training/experience than my FACEP!

  3. So how would you recommend that the APP document that they asked the attending to see the patient, and if the attending either delays or does not see the patient (like the patient with multiple visits or has a seemingly innocuous complaint like knee pain?) Our EMR actually gives the MD final documentation and can freely change what is written, so what I write may or may not represent my documentation.

    Thoughts for an APP?

  4. Greg, I greatly appreciate your candor regarding this issue. I was at your ACEP talk which held a different tone. In your talk you emphasized the economic realities of all western institutions and the inevitable need for Emergency Medicine to provide greater value. (We cost A LOT…and this will be hard continue justifying.)

    I don’t think you believe that increasing value equates a lessor quality of care. In fact, you might agree that value can substantially increase quality (patient satisfaction among many other variables.) Some acknowledgment of this in your article would have been appreciated. Nonetheless, your current candor has effectively driven a wedge of fear between a nation of providers. An effective technique…sure; but at what cost to those of us who respectfully and consciously collaborate every day?

    -A physician who directs many excellent APPs.

  5. What universe do we live in where if you put an ET tube is someone you get $50, and if you don’t then you could owe them millions?!? If you save their life–they don’t have to pay you anything, yet you are on the line for everything you own, plus your med-mal policy limit, plus future earnings! We as physicians have the political power to change this but we are are own worst enemy. Half of physicians vote Democrat, which is owned by the Trial Lawyers= no tort reform. Even JAMA and NEJM are against us, publishing articles that say healthcare costs aren’t affected by Tort Reform.

  6. The model of a ED where ED MD works alongside a APP is no longer a experiment. Even in a high acuity ,high admit rate ED it provides a good level of patient care. They sit longer than us, they listen longer than us and get us better ED PG scores. The patients they see are not chest pains, but low acuity. Low acuity, low risk. NOT no risk to the signing MD. State laws mandate that the charts are cosigned by MD’s. The trend is here and expect most groups to have 25% APP coverage in the next ten years. Independent contractors, hospital employees are able to make increasing wages in 2015 because of having the low acuity , dischargeable patients be treated by APP’s. Avoid lawsuit risk? Hire experienced, not new APP’s. Give them a list of mandatory MD consults using local and state APP regs. It will take the sting out of cosigning charts.

    • Dr Linnik – I enjoyed your commentary and observations but would offer to disabuse you of the generalization that the patients PAs and NPs (APPs) see in EDs are low-risk. Perhaps in your shop, but I know of many high acuity, high-admission EDs where APPs do indeed see and workup acute and undifferentiated chest pain, belly pain, geriatric back pain, acute headache, AMS, etc., treat them, risk-stratify them and then consult to get patients admitted or obs’ed. I work in one of those: an 88k+ visit, academic, level I trauma center with a 28% admission rate (and 50 hrs of APP coverage/day). We do this and we do it well, precisely because we have developed excellent relationships with our attending EP colleagues that naturally (in my opinion and experience) leads to a graduated levels of earned autonomy – and trust. We are effective, safe, and efficient at evaluating, treating and dispositioning these patients perhaps because we “sit longer” and “listen longer”, but we effect a high level of medical decision-making because we practice under the umbrella of appropriate supervision. We’re also smart, educated, caring and dedicated professionals. I recall our residency director a few years ago relating a comment from a CORDs round table which is very true: the quickest way to frequent and regular turnover in your PA/NP group is to relegate them to ‘Fast Track’. If we wanted to see nothing but low acuity and low-risk we’d be working in Urgent Care.

        • medical school isn’t a guarantee that a person is truly qualified to see high acuity patient’s either, just because a person chooses a career path as APP doesn’t make that person an inferior person or provider. There are plenty of providers of all types that are smarter than you or I, and there are plenty of providers of all types that are not. I do see and treat high acuity patients in the ICU and also through out the hospital, and I am trained to do so with a great amount of autonomy. It is a persons ability to understand medicine and apply best practices that qualifies a person to see different types of patients in a ICU or a rural office. It is not the degree that is just a piece of paper it is the persons abilities behind the degree that matters.

      • amen!!! from a critical care APP with 15yrs hospital experience and 25yrs medical experience, that helps teach residents and also perform a number of procedures that doctors won’t do because of lack of experience or fear of liability. Just a reminder some of the most Intelligent people in the world have little to no formal education. A advanced medical degree is a great achievement for anyone, but that in its self does not guarantee that the name on the degree truly makes that person a good provider. Sorry to say but I have met plenty of MD/DO, NP and PAs that can ace a test but are truly dangerous when it comes treating a patient. I have particular doctors and APPs that I refer patients and my family to see and there are some providers I would never refer a patient too. simply the true ability to practice medicine is not a degree but the ability to learn and apply that knowledge!

  7. Brittany Newberry, PhD, MSN, MPH, ENP-BC, FNP-BC on

    As an Emergency Nurse Practitioner, I have listened to many of Dr. Henry’s educational lectures. I have never found him to be particularly disparaging of working with Advanced Practice Providers (APPs). And, perhaps I am wrong, but that’s not really the way I take this article. It appears that Dr. Henry is pointing out some concerns related to physician oversight of APPs that many physicians see as legitimate concerns. While I don’t necessarily agree with instilling fear in physicians regarding working with APPs, I do think that we need to have better communication among providers to ensure healthy, patient-centered, and trusting relationships.

    These concerns are provider and facility dependent. There are both highly qualified APPs working in EDs and probably some APPs that are better suited for other areas of practice. This is true for physicians just as much as APPs. I have worked with physicians who are incredibly knowledgeable that I have learned a great deal from and have had an excellent working relationship with. I have also worked with physicians that I did not trust with the ED patients and I felt like I had to go behind that physician for almost every case to ensure patients were being treated appropriately in an ED setting. I have worked with physicians who could do any ED procedure imaginable and I have worked with some who do not even know how to run a code.

    I grew up in the Level 1 world of Emergency Medicine and have spent the past 4 years or so working in rural Emergency Medicine, which honestly is an entirely different arena. APPs may function differently in different facilities based on the needs and flow of the ED. In the Level 1 world there are many providers and specialists to consult with. Working in rural medicine, it is just me and one physician (usually an internist or Family Practice physician) and it is often just me running the ED because the physician has been on for 24 or 36 hours or is busy seeing inpatients on the floor. An APP working in an environment such as that must be very competent and know when they need to involve the physician. I have always been the ONLY Emergency Medicine certified practitioner in the small, rural hospital that I work in as they physicians are usually Family Medicine boarded. Medicine in general, but especially Emergency Medicine is all about teamwork. All members of the team need to be competent and that means administration, RNs, managers, APPs and physicians. I have heard Dr. Henry say this many times before, “Know the medicine” and that is true no matter what your role is in ED care.

    Nurse practitioners, just like any healthcare professional, have a duty to identify themselves appropriately to the patient. I have a PhD but my role is a Nurse Practitioner. Even if I use the title Dr., I introduce myself as a Nurse Practitioner. While I understand that this might be confusing for some patients (even once I explain it) I also feel that patients benefit from knowing that their care is being delivered by someone who has a high level of education. I personally have never met an APP who intentionally represented him or herself to a patient as a physician. I certainly cannot say that has never happened but a practitioner that does that probably needs to be assessed for a proper fit to the organization. At our facility, we say that the patient will be seen by a provider.

    Emergency Medicine is a relatively new specialty with the first residency program being up and running in 1970. Emergency Medicine specialty for APPs is even more new with the first Emergency Nurse Practitioner certification being awarded in 2013. As a new, collective group we are working towards standardized competencies and scope of practice and being able to educate hospital administrators as well as physicians about who we are and what we do. This will enable us to better outline roles, responsibilities, and expectations for all provider roles. I agree that some things still need work so that physicians feel comfortable working with APPs and APPs feel supported by the physicians they work with. Let’s face it; nothing that any of us do is “no risk”. Even something as seemingly simple as a sore throat could be a serious illness. However, we move forward as Emergency Medicine specialists who work together to provide the very best patient centered care that we can based on the resources that we have at any given facility. Emergency Medicine is a difficult, high stress environment. Let’s all work together to better support each other and build strong, efficient teams.

  8. Working the past 11 years in both rural and urban ERs I concur with Brittany, the rural places with fewer resources require more initiative in the midlevel provider, and I’ve seen gross mistakes from ER docs as well but it should be noted those were almost exclusively from contract prn providers.

    Dr Hardy makes a strong case that clearly defined standards for determining levels of Midlevel independence really need to be established. If done by county or state one could can gauge efficacy via annual system comparisons. This would give Drs and Mids a clear expectation when working together, as well as metrics revealing the best standards and practice environments with impleme ntation.

    Perhaps a better idea would be to simply give midlevels independence so that there’s no supervision or cosignatures required. Hire them or let them work in the free market solo. They should know enough to consult when needed like any other type of provider, and docs should then (hopefully but theoretically) be free of legal liabilities.

  9. Stephen E. Lyons on

    Dr. Linnick, thank you for an exceptionally well presented and thoughtful article regarding “APP”/physician relationships or lack thereof, and the legal implications. I am a PA with 40 years of clinical practice experience in Family/internal medicine and Emergency Room. I’ve been blessed and very fortunate to have usually worked with self-secure physicians who encouraged me to work to the full limits of my ability, and who helped me extend those limits. I am also fortunate to have never seen the inside of a courtroom except to testify as an “expert” witness or on behalf of a patient or physician. That being said, my honest position is that “Supervision” is a detriment to all parties. So is mandatory collaboration. They do little to protect the patient, do even less to protect the Supervising Physician, and when they are practiced effectively, only slow down and impede efficient care. Of course, my position is predicated on the premise that any clinician worth his or her salt would seek consultation when indicated. We must all know what we don’t know, whether we are physicians, NPs or PAs. AND, we must have the humility and integrity to consult someone who DOES know, in a timely fashion. The idea that retroactive chart review protects anybody is ridiculous on its face. It does educate those involved, but alas, it is rarely used for that purpose. I have often told my SP that I would never sign a chart I had not read, for a patient I had never seen. To think that does anything other than guide the lawyers to their goal is just naive. To me, the simple answer is to have everyone to take responsibility for their own work as licensed and credentialed professionals. To be wholly accountable for one’s self is the greatest impetus to “getting it right the first time.” And, we must fight to stop professional liability from automatically equaling malpractice. Ah, but that’s a topic for a different discussion. Respectfully, Stephen E. Lyons MS, PA-C, DFAAPA

  10. Janet Wilson, MSN, FNP, BC on

    Exactly Brittany, I also work in a critical access hospital in the ED in a very rural part of VT. We have no on call neurologist, cardiologist, gastroenterologist, etc. We have a couple general surgeons, a respiratory team, and three orthopedist who will only take call for fractured hips. When I started in ED I was an RN in a very busy ED in a large city. As an FNP I took the job in the real critical access hospital and I was very fortunate that a few of the ED docs took me under their wing and trained me. Then the ED group broke up and we are stuck with locums. This has been an absolute nightmare because they may be MD’s but I have to tell you we have had to let a lot of them go because of their inability to perform. Occasionally we have ED certified docs come through and I tell them I am glad I finally met a real emergency room doctor. So being an MD does not mean the you know what you are doing in medicine. As a matter of a fact I have met about 50/50 of MD’s who do and do not know what they are doing. As far as the liability aspect, if I discuss a case with the Doc then I have them come in and see the patient and note in my charting that I did exactly that. But do not think the we as NPs or PAs see only sore throats. I have ran codes, given thrombolitics, heparin drips, DKA etc. Now that being said I do not relish taking care of those patient’s but when the ED docs refuse to do their part I step up. Yes I have had MD’s in the ED who refuse to work hard and this is a common response. Also those MD’s who thinks he/she is beyond seeing a sore throat or cough. So there are many problems with this provider title. But I have to say it is scary to see the kind of doctors that are out there these days. I know NP’s and PA’s who make doctors look like medical students and inadequate NP and PAs . But people who are suing for some bogus or real thing is the problem. In our country we let people sue over the stupidest and minimal thing. That is what needs changing.

Leave A Reply