‘Minute clinics’ raise round-the-clock risks

“Minute clinics” will soon be opening in CVS stores across Massachusetts, with nurses dispensing medical advice and prescriptions in what the pharmacy chain claims to be a quick and inexpensive way for patients to get care for minor medical problems.But in approving these clinics, has the state Public Health Council made a risky move?

• Related story: What providers can do to protect themselves from liability

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.

“If I were a physician, I’d be very concerned about trying to supervise someone else at a distance whom I don’t really know, dealing with a patient whom I’ll never see,” said Leonard Simon, a lawyer in Waltham who represents plaintiffs in medical-malpractice cases.

In addition, doctors and lawyers are concerned about the fragmentation of care that could result when patients visit clinics without the knowledge of their primary care physician.

“From what we’ve seen, these clinics are not integrated into the health care systems that have been developed by physicians, provider groups and hospital networks over the last number of years,” says Bruce S. Auerbach, president-elect of the Massachusetts Medical Society and vice president and chief of ambulatory services at Sturdy Memorial Hospital in Attleboro.

With the arrival of limited-service clinics – at more than two dozen CVS stores in Massachusetts this year and probably other retailers in the not-too-distant future – there will be new job opportunities for nurse practitioners and primary care doctors.

But before jumping in, doctors and lawyers suggest that providers:

• Ensure that the retailer will cover any malpractice claims that arise;

• Verify that the retailer has acceptable written guidelines for when to refer a patient to their own physician or the emergency room; and

• Affirm that systems are in place to receive a patient’s medical history and to report details of the visit back to the primary care physician.

Risky rewards?

David Harlow, a health care consultant and lawyer in Newton, says the shortage of primary care physicians, coupled with patients’ desire for quick, convenient and cheap care, is the big driver behind the clinics.

Despite myriad concerns, professionals acknowledge that the clinics could help relieve an overtaxed primary care system.

“I think limited-service clinics are a bad answer to a primary-care supply problem, but they’re better than the current answer, which is the emergency room,” says Robert M. Hartley, medical director of the Brookside Community Health Center in Jamaica Plain.

Barbara H. Buell, a med-mal defense lawyer in Boston who practices with Bloom & Buell, agrees.

“If a place like CVS can properly take care of a person’s medical problem for $59 where an emergency department would have had to bill $1,000 or more, it’s all to the good,” she says. “But it all depends on the triaging of the problem and the judgment of the first medical person the patient encounters.”

That’s a huge caveat, says Boston plaintiffs’ lawyer Paul Sugarman, a partner with Sugarman & Sugarman, who says that supervising physicians must be aware that they could be liable for any negligence that arises from care in the clinic.

One major concern is the clinic’s “reliance on nurse practitioners some distance away making their own decisions and diagnoses, unlike in a doctor’s office or hospital where the physician is available on site,” he says.

Supervising doctors should also know that if they recommend proper treatment, but a nurse practitioner improperly executes it, they might still get sued, says Heather Beattie, a malpractice defense lawyer in Springfield who also has 25 years’ experience as a registered nurse.

“I could see someone … suing the nurse and then trying their darndest to show the doctor knew something and should have done something,” says Beattie, who practices with Morrison Mahoney.

But Sara Ratner, senior counsel for MinuteClinic, says these bad scenarios are highly unlikely and this type of arrangement is nothing new.

“There are other types of clinics that operate primarily with nurse practitioners and MinuteClinic is really no different from the way they practice in other settings,” she says.

Errors treating kids?

Karen R. McAlmon, president of the Massachusetts Chapter of the American Academy of Pediatrics, believes that the lack of an on-site physician creates a risk of medical errors – a risk that is amplified when treating children with no pediatric specialist on site.

“If you have people who aren’t used to dealing with children and aren’t up to date on what’s new in the field, then an older treatment that’s no longer being used has the risk of being continued,” she says.

To avoid this problem, the guidelines for the new clinics say they cannot treat children age 24 months or younger.

“But even with older children, there’s more risk than with adults being seen in these clinics,” McAlmon adds.

MinuteClinic’s Ratner disagrees, explaining that all of the company’s practitioners are board-certified family nurses.

Plus, they have built-in safeguards to prevent medical errors stemming from special pediatric needs. For example, MinuteClinic has a prohibition on certain vaccines for children under 4. And if a child presents for the same condition at MinuteClinic three times in a year, the clinic has a system built in to reject the patient and refer him or her to a pediatrician or specialist.

Profit motives

Even with safeguards in place, the reality of the corporate world could compromise practices on the ground, says Simon.

For example, while a supervising physician is required to be available by phone, clinic nurses could avoid calling too often for fear of being tagged as a cost center.

“Realistically, a nurse is going to be reluctant to call the supervising physician every time a kid walks in with a sore throat or the croup to make sure it’s not epiglotitis,” he says.

“If they find her making too many calls to the physician, the retailer could say, ‘We have someone here with not enough confidence in her abilities.’ The clinics run on volume and quickness.”

But Ratner says if collaborating physicians find they’re fielding too many calls, MinuteClinic will bring in more to pick up the slack, or look into adding a new clinic somewhere nearby.

“We have the ability to respond to demand in a unique way,” she says, noting that MinuteClinic is accredited by the Joint Commission. “We will not compromise quality in order to generate greater profit.”

Critics complain that the profit motive could push clinic staff to over-recommend prescriptions and over-the-counter medications to boost the pharmacy’s bottom line.

Ratner points to safeguards for this as well.

MinuteClinic puts a statement on every prescription saying the patient can fill it at any pharmacy. Any e-prescriptions are linked to all pharmacies in the area. And MinuteClinic trains nurse practitioners not to direct the prescription to the CVS pharmacy.

However, Simon remains unconvinced.

“You want a slice of the health care dollars pie and if you’re a pharmacy, it is going to boost sales of over-the-counter and prescription medication,” says Simon, who is a former pharmacist himself. “It then becomes at least in part a product-sale-driven kind of practice with inherent conflicts and risks.”

Fragmented care

Primary care providers are apprehensive about the potential fragmentation of care that could occur when their patients visit limited-service clinics.

For instance, patients might not provide a full picture of their medical history, which could create problems with the treatment they receive, says Auerbach. Or the treatment may never make it into the patient’s medical record.

Ratner states that MinuteClinic addresses these issues by asking patients what medication they are taking and then saving the information in the system for the next time the patient comes.

If clinic staffers are concerned that they may not be getting the full picture, they will send the patient to his or her primary caregiver. Additionally, their systems are capable of pulling a patient’s medical history – as long as the primary caregiver maintains an electronic medical record and is willing to share the information.

But Simon notes that obtaining a comprehensive history will take time, and in an establishment designed for quick processing of patients, time is money.

“If there’s a line out the door, you can’t call in another nurse or technician” as you can in a fully-staffed facility, he says. MMLR

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editor at: reni.gertner@lawyersweekly.com