Summary
The legal principle of vicarious liability holds an individual or entity responsible for acts or omissions of another person. Most physicians and APPs are aware of how their own actions and decisions affect risk and patient safety; however, it is easy to forget about vicarious liability. Thoughtfully implemented risk management strategies can effectively mitigate those risks.
Common allegations involving APPs include:
- Failure of the physician to adequately supervise and monitor the APP.
- Failure of the APP to consult with the physician when needed.
- Failure of the physician and/or APP to follow the supervisory/collaborative agreement.
- Negligence of the physician in allowing the APP to practice beyond the scope of the supervisory/collaborative agreement.
Facts:
A 17-year-old female presented to the hospital at 41 weeks gestation for augmentation of labor. When labor failed to progress, the patient was moved to the operating suite in preparation for an urgent cesarean section. The epidural catheter became displaced during the transfer, and a CRNA administered a spinal anesthetic. Shortly afterwards, the patient suffered cardiopulmonary arrest. She was subsequently intubated, resuscitated, and delivered of an infant with Apgar scores of 0/7/8. Immediately following delivery, she again suffered cardiac arrest and was resuscitated.After resuscitation, the patient had some independent respiratory effort and was extubated. During her transfer to the intensive care unit, she experienced respiratory distress and began posturing, which was indicative of neurologic instability. After a 15-minute delay, she was re-intubated.
Diagnostic testing confirmed an anoxic brain injury. The patient was transferred to a tertiary care hospital. Shortly thereafter, a lawsuit was filed.
Allegation:
The defendant, the supervising anesthesiologist, was accused of negligence in supervising and directing care provided by the CRNA.
Testimony:
Both the CRNA and the defendant anesthesiologist were contracted to provide services in the hospital. Additionally, the defendant was the consultative anesthesiologist on duty to provide supervision and assistance in case of emergency. The plaintiff argued the defendant was negligent for failing to supervise and direct the care provided by the CRNA, including pre-anesthesia evaluation, and for failing to be physically present at the hospital in order to respond promptly to requests for assistance.
The defendant anesthesiologist testified that although he had been the supervising physician on duty, he had not been consulted at any time during this event. He argued that a physician−patient relationship had not been established, thus relieving him of all responsibility for diagnostic or care management decisions.
Expert opinion:
Plaintiff experts opined that the anesthesia was excessive, and the combination of epidural and spinal anesthesia caused cardiopulmonary failure. Defense experts agreed that cardiopulmonary failure likely resulted from the anesthesia, but stated the decision to use a spinal anesthetic once the epidural dislodged represented conventional anesthetic decision-making. All parties agreed the resuscitation efforts were appropriate, excluding the premature extubation that contributed to cardiopulmonary failure and reintubation delay.
Damages:
After an extended hospital and rehabilitation stay, the patient was discharged home in care of her parents. Today, the patient suffers from significant neurocognitive deficits and requires frequent cueing and assistance to perform activities of daily living. She is incapable of independently making day-to-day decisions and caring for her child.
The case settled for $740,000.
Discussion:
As the supervising anesthesiologist on duty, the defendant should have been available to assist the CRNA in providing obstetric anesthetic care. Hospital by-laws did not require the defendant to be on premises when the CRNA administered epidural anesthesia, but he was required to be available at the facility within 15 minutes of notification. The defendant was neither called nor consulted during the patient’s hospitalization, so by definition, there was no physician−patient relationship. Yet the argument remains that the defendant was responsible for supervising the CRNA. Post-event, the defendant reviewed the care management medical record documentation as evidenced by signature authentication.
Risk Mitigation Strategies
-
Hire appropriately. Screen and validate the credentials of all prospective employees prior to hiring to be sure they have the necessary qualifications and training for the job. Grant privileges or assess competency to ensure the applicant’s training and experience meet the organization’s criteria. Verify applicant credentials prior to hire. Conduct reference and criminal background checks as allowed by law and assess competency prior to hiring employees.
-
Know the law. Understand state and federal requirements for each type of employee the organization intends to hire. State law typically dictates the nature of the relationship between physicians and APPs as well as scope of practice. Consult legal counsel when developing policies and procedures regarding collaborative/supervisory relationships to ensure consistency with applicable laws.
-
Prepare written collaboration/supervision agreements. Physicians who enter into collaborative practice or supervision agreements must fully understand liability, duty of care, and contractual obligations. Ensure that all supervising and collaborating physicians are willing and competent to do so. Review all contractual agreements prior to signing them and ensure they comply with applicable laws. Consult an attorney if necessary.
-
Develop written job descriptions. Ensure that written job descriptions outline specific job functions and responsibilities. Carefully define the scope of practice and expectations for patient care in written job descriptions. These descriptions should be consistent with state law and the comfort level of the parties.
-
Develop concise policies. Develop clear, concise, and current policies, procedures, and protocols that ensure good communication and safe patient care. It is vital for all healthcare practitioners to operate under a single set of directives.
-
Educate the staff. Provide training for physicians, APPs, and other staff members on expectations for communication, including when to notify physicians. Incorporate specific examples. Promptly communicate any changes or additions to policies and procedures to staff.
-
Communicate with patients. Develop strategies for communicating practitioner qualifications, scope of service, and delineation of patient care responsibilities to patients.
-
Monitor performance. Establish a method for continually evaluating performance and adherence to procedures, policies, and protocols. Establish a standardized employment review process that incorporates record/case review to ensure the delivery of high-quality care.
Most physicians and APPs are aware of how their own actions and decisions affect risk and patient safety; however, it is easy to forget about vicarious liability. Thoughtfully implemented risk management strategies can effectively mitigate those risks.
Additional resources:
-
Credentialing, Privileging and Peer review Self-Evaluation
-
APRN Collaborative Agreement-Sample
-
PA Supervisory Agreement-Sample