As other health care workers’ duties expand, so does physicians liability

From universal coverage and innovations in health information technology to growing physician shortages and soaring costs, Massachusetts finds its health care system stretched and strained.

Physicians in particular, at the center of the system, are being challenged in many ways – clinically, economically, politically and professionally.

One of the more dramatic changes to our medical landscape is the expanded scope of practice of allied health professionals.

Such expansions have occurred for two basic reasons: 1) aggressive lobbying of membership groups and unions to enhance their professional status and incomes by providing more complex patient services (a basic advocacy role of any membership group), and 2) increasing shortages of physicians, causing legislators, insurers, regulators and even some health care providers to ask allied professionals to provide more care.

The value and importance of allied health professionals are not in question. They occupy critical places in our health care system.

Yet, as nurses, midwives, podiatrists and others seek to gain approval to provide more services – some perhaps beyond their experience or training ­– and as regulators and legislators grant such expansions, physicians must ask themselves two key questions: What does this mean legally for physicians? And what does it mean for patients with regard to standards of care?

Physicians recognize that liability concerns pervade the practice of medicine. We know physicians have curtailed high-risk services for fear of being sued, and the cost of “defensive medicine” often used to protect against lawsuits is enormous.

Will expanded allied services put physicians at greater risk for liability? What will we need to do to protect patients being cared for in less traditional settings? Let’s look at some scenarios.

State Senate Bill 1251 would allow national organizations (The American College of Nurse Midwives and the North American Registry of Midwives) to set standards for licensing nurse and non-nurse midwives. From a physician’s perspective, this bill would endanger the public by allowing women and children to receive a range of health care from individuals not currently eligible to be licensed as health care providers. Insurers indicate that premiums for nurse midwives could double or triple in the first year if the legislation passes.

What happens if midwives leave collaborative practice settings for independence? What happens if complications occur during a delivery by a non-nurse midwife given new authority but no new skills under the new law? What does a physician do when the patient is brought in on an emergency basis? What risk does an obstetrician take in trying to correct the situation? Could a doctor be held liable should there be a bad outcome?

Retail-based health clinics, new to the Commonwealth, pose another concern. Nurse practitioners, serving walk-in patients, must operate under the supervision of a physician by state law.

But let’s say a nurse practitioner wants to work part-time in a retail clinic, away from the supervising physician’s office. In the absence of physician-nurse guidelines governing such clinics, does the physician incur greater liability? Do physicians violate the rules of the Board of Registration in Medicine when nurses they are supposed to be supervising work in another setting without a new supervisor? Or with lax supervision that may not meet standards?

Physicians in these settings must ensure that they have appropriate protocols and guidelines in place that clearly delineate responsibilities. They should also ask their insurers to find out what their liability is or could be before they enter into such arrangements.

Legislators and policymakers must also pay heed to these changes, because the effect of these actions is simply to lay another level of liability on the physician. The state’s highest court’s December ruling in Coombes v. Florio, saying that a physician may be liable if a patient who is on a medication he prescribed harms a third party, now holds physicians accountable for the actions of others beyond their control. Will the actions of allied health providers bring new cases as well?

In a state where professional liability casts a huge shadow over the practice of medicine and where the number of physicians and access to care are shrinking, the question legislators and policymakers must ask is this: Do we want to place physicians at an even greater risk of liability, giving them another reason to curtail services or even leave the state?

Physicians have always taken on the responsibility for the overall care of their patients. However, given the implications of independent and expanded practice, it may be time to reconsider the “captain of the ship” concept of physician liability for everyone’s actions.

Bruce S. Auerbach, M.D., is President of the Massachusetts Medical Society and Vice President and Chief of Emergency and Ambulatory Services at Sturdy Memorial Hospital in Attleboro.