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    Physician assistants and your risk of malpractice

    Case study examines your litigation risks — and the findings may surprise you

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    Matt Ledges, MD, MS, PA
    Claims and suits against physician assistants (PAs) and their supervising physicians are rare, and the outcomes usually are favorable for the defense. Some risks remain, however, and understanding agency law, liability, and the elements necessary for malpractice claims may give you a better vantage point in preventing lawsuits or winning them.


    Michael Victoroff, MD
    The PA profession has grown tremendously since its birth in the 1960s. Today, PAs are licensed in all 50 states and practice in most specialties and settings. The profession's popularity also is evident in an increasing number of PA schools, numerous independent rankings and growth projections, and recent global expansion.1,2,3


    Adit A. Ginde, MD, MPH
    Yet controversy remains regarding how PAs' malpractice litigation risk compares with that of physicians and to what extent doctors' risk of malpractice litigation is affected by supervising PAs. The dependent practice model remains at the core of the PA profession. It also fuels much of this debate, however.

    LEGAL FRAMEWORK

    The nature of a dependent practice unites PAs and physicians not only in individual patient care but also in any litigation that may develop as a result. The legal principle of agency is the basis of the PA-doctor relationship and underlies most states' statutes governing PA practice. Generally, agency law holds a supervising physician liable: 1) for his or her own negligent acts (direct liability); or 2) for the negligent acts of a subordinate PA (vicarious liability).4

    Negligence claims are generally required to have four basic elements:

    • The provider owed a duty to care.
    • The provider breached that duty.
    • The breach proximately caused an injury.
    • The injury resulted in compensable legal damages.

    In practice, both direct and vicarious liability may be alleged in a single case.

    DIRECT LIABILITY

    A PA acts with authority if the supervising doctor approves his or her conduct. In such cases, if the PA breaches his or her duty to the patient, the physician may be held directly liable. The doctor also may be held directly liable if he or she is negligent in selecting, supervising, or otherwise controlling the PA.

    Negligent selection is a type of direct liability claim in which the physician can be liable for hiring a PA if the doctor knew or should have known the PA had some dangerous propensity. Here, the plaintiff must prove that the act of hiring the PA proximately caused injury and that the physician would have discovered the PA's propensities with reasonable diligence.

    Negligent supervision is another type of direct liability claim; the acts of the doctor (and not necessarily those of the PA) are at issue. State statutes codify supervision requirements and, by extension, what constitutes negligent supervision. Statutes vary by state, but most address issues related to physician presence, acceptable PA-doctor ratios, and chart review obligations.5

    Dynamic elements of PA practice such as clinical setting, level of experience, and employment duration may affect these requirements. Additionally, some states differentiate between primary and secondary supervisory relationships, adding to the complexity of what constitutes diligent supervision.

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