Medical Liability in New Hampshire for Physician Assistant Negligence

 By

    Kevin F. Dugan and Jared R. Green

I.Introduction:

Patients are receiving more medical care than ever from “allied professionals” and not from doctors.  For example, physician assistants are providing primary care, staffing emergency departments, assisting in operations, and evaluating post-operative patients.  One of the consequences of their prominence in the health care system is that physician assistants are more frequently involved in malpractice litigation.  The following article addresses the liability issues that arise in such cases.

II.Statutes and Rules Governing Physician Assistants:

Under New Hampshire law, a physician assistant cannot practice “independent of the referral or prescription, direction, or supervision of a physician . . .”   The Board of Medicine has implemented this requirement by enacting administrative rules which expand upon the necessary supervision.

Each physician assistant must have a “registered supervisory physician” (“RSP”).   The RSP “is responsible for the supervision and performance of a physician’s assistant.”   Supervision is defined to mean “the opportunity and ability of a specified licensed physician to exercise control and direction over the services of a specified physician assistant.”    

The RSP must file a written acceptance of supervisory responsibility with the Board of Medicine.   This document must include a list of all alternate supervising physicians whose scope of practice encompasses the physician assistant’s scope of practice.   Such alternates (“ARSPs”) shall assume the responsibility for the supervision of the physician assistant when the RSP is unavailable.   Each alternate must sign the written acceptance of supervisory responsibility that is filed with the Board.

In addition, the RSP and the physician assistant must develop a specific written job description or “delegation agreement” which must be signed by the physician assistant, the RSP, and any ARSPs.   This delegation agreement “shall constitute the authority for the physician assistant to provide medical care under the supervision of the RSP and ARSP.”  

A single physician cannot be the RSP for more than two physician assistants.   Similarly, a single physician cannot be an ARSP for more than six physician assistants and cannot actively supervise more than two physician assistants at any given time.  

 
The administrative rules require RSPs and ARSPs to: 1) be available for consultation with the physician assistant; 2) be responsible for assuring that appropriate directions are given to, and understood and executed by, the physician assistant; and 3) establish a regular, ongoing evaluation of a representative sample of patient records as part of a review of the physician assistant’s performance.

The rules specifically state that the RSP or ARSP does not have to be physically present while the physician assistant is providing care, so long as the RSP or ARSP and the physician asssistant are, or can easily be, in contact with each other by electronic communication device.   

Subject to the foregoing supervision requirements, the physician assistant’s scope of practice is delineated as follows:

1.The scope of practice shall be defined by agreement with the RSP;

2.The scope of practice shall be limited to and no broader than the scope of practice and privileges of the supervising physician;

3.Medical services delegated by the supervising physician may be performed by the physician assistant in a setting authorized by the supervising physician;

4.A physician assistant may write orders as delegated by the RSP or ARSP.  Such orders must be countersigned by the RSP or ARSP as required by institutional policy, however, such countersignature shall not be required prior to the order being executed; and

5.A physician assistant shall perform practice-related activities such as the ordering of diagnostic or therapeutic services to be implemented by other health professionals under the requirements of supervision set forth above.

The Board of Medicine’s rules also confirm that a physician assistant may prescribe, dispense and administer drugs and medical devices to the extent delegated by the supervising physician.

III.Malpractice Liability:

A physician assistant is included within the definition of a medical care provider subject to New Hampshire’s medical injury statute.   This means that a medical negligence claim against a physician assistant is governed by the same standards as a claim against a physician.  The more complicated question is whether a supervising physician can be held vicariously liable for the negligence of a physician assistant.

In Anglin v. Kleeman , the plaintiff tried to hold a surgeon vicariously liable for the negligence of a nurse who mistakenly reported that all sponges were accounted for.  Our Supreme Court rejected the “captain of the ship” doctrine and commented that “In modern medicine, the surgeon is a member of a team of professionals, and we see no reason why the surgeon should be deemed responsible for the actions of other professionals neither employed nor controlled by him.”  Id., 140 N.H. at 262.

The statutory provisions and administrative rules described above establish that, unlike the nurse in Anglin, a physician assistant is controlled by the supervising physician.  In fact, these provisions demonstrate that a physician assistant is the agent of the supervising physician.

“[T]he necessary factual elements to establish agency involve: (1) authorization from the principal that the agent shall act for him or her; (2) the agent's consent to so act; and (3) the understanding that the principal is to exert some control over the agent's actions.”   “Control by the principal does not mean actual or physical control at every moment; rather, it turns upon the principal manifesting some continuous prescription of what the agent shall or shall not do.”

By itself, the delegation agreement required by the Board of Medicine’s rules establishes the necessary authorization from the principal (the supervising physician(s)), the consent from the agent (the physician assistant), and both parties’ understanding that the principal will exert some control over the agent’s actions.

A number of states expressly say in their physician assistant statutes that the physician assistant is an agent of the supervising physician as a matter of law, including Arkansas , Indiana , Kentucky , Louisiana , Maryland , Michigan , Montana , New Jersey , Oklahoma , South Carolina , South Dakota , Texas , Utah , and Vermont.   

In a case that did not seek to impose vicarious tort liability on a supervising physician, the Washington Supreme Court held that, although the state’s physician assistant statute does not include an express agency provision, two other provisions indicate a legislative intent to create an agency relationship between physician assistants and their supervising doctors.

In that case the state’s nurses were concerned that a medical board regulation authorizing physician assistants to write prescriptions would expose them to liability if they were to administer drugs ordered by non-physicians.  The state supreme court rejected their challenge to the administrative rule by holding that a physician assistant is the agent of his or her supervising doctor.  The court reasoned as follows:

Two provisions in the statutes authorizing physician's assistants
to practice medicine indicate a legislative intent to create an agency
relationship.  RCW 18.71A.020(2) states that “each physician's
assistant shall practice medicine only under the supervision and
control of a physician licensed in this state.”   RCW 18.71A.050
states that “any physician shall retain professional and personal
responsibility for any act which constitutes the practice of medicine
. . . when performed by a physician's assistant in his employ.”  These
provisions for control and responsibility indicate that the actions of
the assistant are to be considered as actions of the supervising physician.

The New Hampshire PA statute includes the same provisions as those relied upon by the Washington Supreme Court to find an agency relationship.

The Wisconsin Court of Appeals recently held that a surgeon could be held vicariously liable for the negligence of a physician assistant.   The court explained that a surgeon can be vicariously liable for the negligence of his or her assistants if the assistants are under the surgeon’s control and supervision.   It then reviewed the deposition testimony of the physician assistant and the administrative rules governing the relationship between the doctor and the physician assistant, which are very similar to the New Hampshire rules, and concluded that the trial judge should not have granted summary judgment on the plaintiffs’ vicarious liability claim against the surgeon.  Specifically, the court explained that:

Given [the physician assistant’s] testimony and the supervisory
relationship required by the administrative code, there is evidence
that would permit a jury to conclude [the physician assistant] was
acting under [the surgeon’s] control and supervision or that [the
surgeon] had the right to control [the physician assistant’s]
actions.

Recently the Michigan Supreme Court upheld a jury verdict holding a doctor vicariously liable for the negligence of a physician assistant.  In that case the plaintiff’s decedent suffered a fatal heart attack one day after being seen in the emergency department by a physician assistant.  The evidence showed that the supervising doctor did not examine the patient, consult on his case, or review his chart.  The plaintiff brought suit against the physician assistant, the doctor, and the hospital.  However, the plaintiff’s complaint did not allege that the doctor was vicariously liable for the physician assistant’s negligence.  Nevertheless, the trial court allowed the issue to go to the jury and the jury found in favor of the plaintiff.  

The Michigan Court of Appeals reversed in a two to one unpublished decision.   The majority determined that a stipulation stating that the doctor was the physician assistant’s “supervisor” was not enough to establish an agency relationship.   A dissenting judge strongly disagreed with the majority.  He felt the stipulation was sufficient to cure the absence of a vicarious liability claim in the complaint and added, “Surely a supervising physician of a PA is in a position of respondeat superior.”   Interestingly, he conceded that nothing in the state’s physician assistant statutes plainly imposes vicarious liability on a supervising physician for the acts of a physician assistant (despite the fact that Michigan is one of the states expressly saying that the physician assistant is the agent of the supervising doctor) but he felt the common law of agency supported the imposition of vicarious liability.   He rejected the majority’s argument that agency liability cannot be imposed when the supervisor and the subordinate are co-employees.  In fact, he called this argument “patently specious” and warned that it would create “a huge, unintended loophole” that would allow physician assistants to practice unsupervised.   
 
The Michigan Supreme Court summarily reversed the court of appeals and reinstated the jury verdict holding the physician vicariously liable.   The Supreme Court concluded that the doctor could not disclaim liability because he had not objected to the trial court’s vicarious liability jury instruction.   The Supreme Court also noted its agreement with the dissenting court of appeals judge that the plaintiff’s failure to allege vicarious liability in her complaint was not fatal.

IV.Conclusion:

When a patient has been harmed by the negligence of a physician assistant, the physician assistant is personally subject to liability under New Hampshire’s medical negligence statute.  In addition, since a physician assistant acts as the agent of his or her supervising doctor, the supervising doctor is vicariously liable for any harm caused by the physician assistant’s negligence.  Such vicarious liability can make the difference between fully compensating the patient or only partially compensating the patient.

ENDNOTES

 .  RSA 328-D:6, V.
 .  Med. 604.01(a)(3) and (4).
 .  Med 601.08.
 .  Med 601.09.
 .  Med 602.01(d).
 .  Id.
 .  Id.
 .  Id.
 .  Med 602.03(a).
 .  Med 602.03(b).
 .  Med 602.02(a).
 .  Med 602.02(b).
 .  Med 602.01(a) and (c).
 .  Med 602.01(b).
 .  Med 603.01.
 .  Med 612.01(d).

 .  RSA 507-E:1, (II).
 .  140 N.H. 257 (1995).
 .  Dent v. Exeter Hospital, Inc., 155 N.H. 787, 792 (2007).
 .  Id.
 .    “Physician assistants shall be considered the agents of their supervising physicians in the performance of all practice-related activities, including, but not limited to, the ordering of diagnostic, therapeutic, and other medical services.”  Arkansas Code Annotated
§17-105-107(b).
 .  “A physician assistant is the agent of the supervising physician in the performance of all practice related activities, including the ordering of diagnostic, therapeutic, and other medical services.”Indiana Code 25-27.5-5-3.
 .  “A physician assistant shall be considered an agent of the supervising physician in performing medical services and procedures described in the initial application or any supplemental application received by the board  . . .” Kentucky Revised Statutes 311.858(2).
 .  “A physician assistant is considered to be and is deemed the agent of his supervising physician in the performance of all practice-related activities, including but not limited to assisting in surgery and the ordering of diagnostic and other medical services.”  Louisiana Statutes Annotated 37:1360.31(a)(1).
 .  “A physician assistant is the agent of the supervising physician in the performance of all practice-related activities, including the oral, written, or electronic ordering of diagnostic, therapeutic, and other medical services.”  Maryland Code § 15-301(e).
 .  “A physician's assistant is the agent of the supervising physician or supervising podiatrist.” Michigan Compiled Laws 333.17078(1).
 .  “A physician assistant is considered the agent of the supervising physician with regard to all duties delegated to the physician assistant and is professionally and legally responsible for the care and treatment of a patient by a physician assistant licensed in accordance with this chapter.”  Montana Code Annotated 37-20-403(1).
 .  “In the performance of a medical procedure, a physician assistant shall be conclusively presumed to be the agent of the physician under whose supervision the physician assistant is performing.”  New Jersey Statutes Annotated 45:9-27.17(c).
 .   “the physician assistant is an agent of the supervising physician . . .”  59 Oklahoma Statutes Annotated § 519.6(B)(e).
 .  “A physician assistant is an agent of his or her supervising physician in the performance of all practice related activities including, but not limited to, the ordering of diagnostic, therapeutic, and other medical services.” South Carolina Code 1976 § 40-47-935.
 .  “A physician assistant shall be considered an agent of the supervising physician in the performance of all practice-related activities.” South Dakota Codified Laws §36-4A-26.1.
 .  “A physician assistant is the agent of the physician assistant's supervising physician for any medical services that are delegated by that physician and that: (1) are within the physician assistant's scope of practice; and (2) are delineated by protocols, practice guidelines, or practice directives established by the supervising physician.” Tex. Occ.Code Ann. §§ 204.202(e).
 .  “[T]he physician assistant acts as the agent of the supervising physician or substitute supervising physician when acting in accordance with a delegation of services agreement.” Utah Code Annotated 1953 § 58-70a-102(4)(b).
 .  “The supervising physician delegating activities to a physician's assistant shall be legally liable for such activities of the physician's assistant, and the physician's assistant shall in this relationship be the physician's agent.” 26 Vermont Statutes Annotated §1739(a).
 .  See Washington State Nurses Association v. Board of Medical Examiners, 605 P.2d 1269 (Wash. 1980).  
 .  Id., 605 P.2d at 1271.
 .  Pretzel v. Valley Orthopedics LTD, 770 N.W.2d 787 (Wis.App. 2009).
 .  Id., 770 N.W.2d at 792 (quoting Lewis v. Physicians Ins. Co., 627 N.W.2d 484, 495-96 (Wis. 2001) (Abramhamson, C.J. concurring)).
 .  Id., 770 N.W.2d at 794.
 .  Symons v. Prodinger, 2008 WL 4890177 (Mich.App. 2008).
 .  Id. at *6.
 .  Id. at *12 (Markey, J., dissenting).
 .  Id.
 .  Id. at *9.
 .  Symons v. Prodinger, 768 N.W.2d 317 (Mich. 2009).
 .  Id., 768 N.W.2d at 318.
 .  Id.