Massachusetts Medical Law Report: “Doctors, lawyers and consultants warn that the clinics open a host of liability risks and other concerns for the nurse practitioners who will staff them, the physicians who will supervise them and the primary care physicians whose patients may visit them.
Lawyers tell Massachusetts Medical Law Report that the operational model for the typical clinic ““ a nurse practitioner treating patients on site with the supervision of an offsite physician ““ creates legal concerns for doctors and nurses alike.”
Related posts:
- Retail clinics and conflicts of interest
- Regulating the retail clinics
- The retail clinic era is over, and why pharmacy-based clinics are doomed to fail
- Retail clinics: If you can’t beat ‘em . . .
- Retail clinics don’t save money
- My take: Carrot > stick, the pandering NEJM, retail clinics
- Medical spas and retail clinics
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{ 21 comments }
As they say, no good deed goes unpunished.
NY is a vicarious liability state. That will surely open the coffers of CVS, Rite Aid, Wal-Mart, etc. to the avarice of the trial bar. Stay tuned.
The laws aren’t really that strict currently on how often an NP needs to work with a supervising physician. I think it’s like 30 minutes a year or something like that, according to my prof. Who knows if he’s right? I believe it’s stricter for PAs.
doc99- You mean vicious? Otherwise, not sure what your comment means.
The Trial Lawyer Industry appears to be the enemy of all medical innovation, from new pharma (no new drugs in the pipeline) to service delivery (retail clinics).
On the other hand, Walmart has infinite more clout than the pathetic doctor lobbies. Maybe it will that (ironically) Walmart that has the cujones to take on the professional shyster parasites.
At a recent visit to a “minute clinic” for a “flu shot” I noted that nowhere is it posted who the responsible MD physician is, nor where he can be reached. There is no mention if he is local or at an 800 number in Singapore. Just who regulates these “pharmaceutical clinics”…??
Physicians are trying to scare off the Wal-Mart’s and such because they’re scared that they’ll lose business. And rightfully so, because concepts like patient satisfaction are foreign to most physicians, but they’re paramount to those retailers.
It’s a cute trick to try and scare them with “the lawyers will get you”, but it won’t work with sophisticated retailers.
Christine-Megan,
vicarious liability is (from wikipedia):
the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the “right, ability or duty to control” the activities of a violator.
Either way, doc99’s comment makes no sense. Is there a state that doesn’t hold a party responsible if they control the actions of another? It’s basic agency law.
Anon 10:30:
I’m guessing that in every state, the supervisor is held responsible. I think that some states go beyond that in their laws. In MS, a doc can be held responsible for the actions of another doc, if the patient assumes that their is a relationship between them. For example, I could be held liable for the doc who covers my patients, even if we are not part of the same business entity. (I don’t fully understand this issue, and have probably butchered the details). There is a different type of rider available on my malpractice policy for the 2 following situations 1) a nurse or technician who works directly under me and 2) a vicarious liabilty rider for if I’m sued for the actions of a doctor who is not directly associated with me, but the patient assumes there is an association.
My worry with “Minute Clinic” and the like is that it compromises what I believe to be one of the most important functions of the primary care physician — sifting through the dozens of patients with simple complaints to pick out the ones for whom the simple complaint really represents the initial presentation of something more serious. Most of the time, the swollen tonsil is indeed a minor viral pharyngitis, and the swollen lymph nodes in the neck are from an ear or throat infection. A thorough primary care physician functions in large measure to sort out which swollen tonsils or nodes are really something more serious. But if the goal of the “Minute Clinic” is to get the patient in and out as quickly as possible (thus satisfying their desire to be seen immediately and get the antibiotic they want), how many low stage (curable) lymphomas will be missed before they become higher stage and much more difficult to treat?
Health care is not just another commodity, like gasoline and toilet paper.
Vicarious liability goes agency law one better … If one party can be even 1% liable, he’s liable for the whole enchilada.
You’re referring to joint and several liability. Many, if not most, states have modified the concept, usually requiring some percentage of fault threshhold higher than 10-15%.
The theory is why should the victim bear the brunt of a bankrupt defendant as opposed to a party who is at least partly at fault? That being said, the Wal-Mart’s of the world will have made the physicians independent contractors.
Here we go again, Kevin. These thinly veiled attacks on retail health are just as much an attack on the professionals that staff them. Here is some information for the very apparent lack of knowledge that your physician colleagues share regarding NP practice: In most states, NP’s practice autonomously, that is, in collaboration with a physician (notice that I didn’t say supervision). NP’s are liable for the care rendered (last time I checked, I have my own license, DEA, and malpractice insurance). To assume that the NP’s collaborating physician will bear the brunt of any litigation is truly self-rightous.
Also to anonymous 11:06 pm, was your “flu shot” “not real” because it was at a “minute clinic?” In addition, most states do not require the listing of the collaborating physician at the practice site. NP’s/PA’s are required to collaboate with licensed physicians that are located in the same state. The same group that “regulates” your office is the same that regulates retail health.
doctor david – your argument that NP’s can/will miss something that “only a trained physician is capable of detecting” is old. With well over 100,000 NP’s practicing across the US, I can assure you that we miss no more than any other practicing professional.
What exactly does “collaborate” mean. What does the supervising physician do exactly? How can he do anything meaningful in one phone call a week? The patients that they may discuss in that encounter are long gone from the clinic.
Either NP’s need a supervisor, or they don’t. If they don’t need one, the legal requirement should be dropped. If they do need one, then it should be meaningful. I saw an ad online in which NP’s in Oregon could pay a fee by CC and fill out an online form and meet the “supervision” requirement. That is ridiculous and farcical. Is it the law not giving NP’s full independence that is the farce or those NP’s and physicians who just go through the motions? I don’t know but our professionals and legislators sure as hell need to figure that out and act accordingly.
On another note. what I find interesting about these clinics is that they represent pharmacies going into the business of practicing medicine–and doing so in a setting where they hire only limited license practitioners with no tradition of independent practice with whom they can exert tremendous influence for the optimal profit of the parent pharmacy operation—a glaring and dramatic conflict of interest even as pharmacies continue their 150 year campaign to prevent doctors from dispensing on the grounds of conflict of interest. But it all has happened so fast that no one has seemed to notice or give full consideration to that issue. Anyone who doesn’t think that the management of those companies aren’t going to manipulate the practices of those clinics for optimal pharmacy profit on the dispensing side hasn’t had any association with MBA trained members of the management profession in the last 20 years.
Naive as hell!
Being a doctor in the field of laser medicine, I feel justified in expressing the importance of an in house doctor for all clinics that do laser procedures. I don’t care if it is just laser hair removal that they are offering, a “salon” should not be performing laser on the unsuspecting public. The bottom line is that lasers are dangerous in the wrong hands and thus should always at the very least, be physician supervised.
Anonymous : 10:30 AM: Yea. The lawyer is the agent of the client. Yet, he has total immunity for bringing the relentless waves of meritless lawsuits.
“To assume that the NP’s collaborating physician will bear the brunt of any litigation is truly self-rightous. “
It’s not self-righteous, it is a fact of the legal system. Don’t worry though, the lawsuit will not rest at only the physician. The pharmacy will definitely be named as well.
A few misconceptions by NP 9:32:
1: Have you ever been sued Mr/Ms NP? I can assure you FIRST HAND that your collaborating MD WILL be named in a suit due to your (presumed) negligence and depending on the circumstances may bear the brunt of your (presumed) negligence. When you actually have been through the process once get back to me. Based on MY EXPERIENCE I will never ever be a collaborating off-site MD again for an NP/PA. I will however happily oversee them in the clinic.
2: I totally agree with anon 9:48. If the “collaboration” is nothing more than an occasional phone call to the doc off-site for the purpose of CYA/regulations, then it clearly needs to be dropped. The NP’s in those states should take the responsibility of patient care over on the own (and everything that goes with it medically/legally)and drop the farce of MD involvement under those circumstances.
3: Lastly, I am a firm beiever in NP/PA involvement. However, I have not irregularly seen NP’s/PA’s get in over there head (and not realize it) so I tend to disagree with you about “I can assure you that we miss no more than any other practicing professional.” I go over every patient the NP sees in my clinic (often very briefly) if I am the supervising doctor. period and I assure you that I do pick up misses due to the difference in our training and experience. Not a complaint, a simple fact.
In my state the NP’s practice independently. They don’t need physician supervision.
As a practicing MD who supervises NP/AP on a daily basis, I can assure you that mid-levels absolutely miss multiple essential facts in HPIs and on several occations mismanage cases. What is disturbing about this is that they don’t realize it. I can assure you most MDs are concerned about the quality of care delivered especially in the more complex cases. NP/PAs should understand that our 12 years or more of training positively impact our medical decision making. Many of the MDs that are working with midlevels are critically evaluating the benefits and the risks of this supervising role. For many of us it is a role that has been imposed on us. Overall, the midlevel addition to our group has negatively affected our professional satisfaction. Many of my collegues would rather not expose themselves to the risk, and, in all honesty, the aggravation of having to explain why we want to add the ACE to that CHF pt’s regimen. This comment is not meant to minimize midlevel’s positive impact on healthcare. It is an effort to let midlevels understand MDs perspective on this matter.
To those who ask what function a”supervising/collaborating physician” serves, when the actual opportunity for any meaningful involvement in the patients’ care is miniscule to nonexistent, here’s your answer: he/she serves as a liability sink for the physician extender, a source of “deep pockets” for the lovely lawyers out there!
Kudos, by the way, to the physician who manages to maintain involvement in the provision of care to most or all of his/her patients who are seen by the extenders. I fear that “current trends in practice patterns” will not support this as he/she is presumed to supervise increasing numbers of extenders seeing increasing numbers of patients. Unfortunately, bean-counter types (and YES, greedy physician managers) are the ones who are pushing for more patients to be seen by nonphysicians as a way to boost revenue.
Like anything in life, though, you get what you pay for.
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